Session 2001-02, dated 4 December 2002
Committee reports on Criminal Justice Bill
The Home Affairs Select Committee has published its report on the Criminal Justice Bill, in time for the Bill's Second Reading, which will be debated later today in the House of Commons.
There is much in the Bill that the Committee supports, including the transfer of responsibility for charging to the Crown Prosecution Service, the proposals to relax the double jeopardy rule and the new sentencing provisions. In relation to jury trial, the Committee welcomes the proposal to allow defendants in the Crown Court to 'opt out' of jury trial and accepts the need for dispensing - in some cases - with a jury in a complex financial case or where there is a risk of jury tampering.
However, the Report does raise serious concerns about some provisions of the Bill, which the Committee believe "will shift the balance too far towards the State". In particular -
the Committee rejects the proposed reform of the law on bad character evidence, which will allow greater admission at trial of a defendant's previous convictions (and therefore recommend that Clauses 84 to 92 be deleted from the Bill)
the Committee is concerned that the proposal to disclose the names of defence witnesses - in advance of trial - will allow the police and prosecution to put pressure on them, if minded to do so: the Committee therefore recommends that the Bill be amended so that, where the prosecution wish to interview a defence witness, they should be required to notify the defence and offer to interview the witness in the presence of the defence (Clause 29)
the Committee is concerned about the proposed extension of the time limit for detention before charge to 'non-serious' arrestable offences from 24 hours to 36 hours (Clause 5) and about the proposed procedure for establishing and revising the PACE Codes of Practice (Clause 7)
while the Committee accepts the need for conditional bail before charge, it recommends that it be subject to a time limit of four weeks
The Report also examines possible additions to the Bill, including a ban on payments to witnesses in active criminal proceedings and extension of anonymity to those accused of sexual offences.
Chairman, Chris Mullin MP said:
"The Committee was unanimously opposed to the Government's plans to extend disclosure of previous convictions. It is a bridge too far and I hope the Government can be persuaded to drop it."
SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
(a) In future, we would expect all Government departments to make Explanatory Notes available on the first day that a Bill is published and, at the very least, well in advance of Second Reading (paragraph 9).
Amendments to PACE (Part 1)
(b) We welcome the provisions for street bail (Clause 3), for the use of telephones for review of police detention (Clause 4) and repeal of the requirement to record detailed particulars of a detained person's property (Clause 6). These appear to us to be sensible measures to reduce unnecessary police bureaucracy, without impinging on the rights of the accused (paragraph 15).
(c) We do not think that the Home Office has made out a convincing case for extending the detention time limit to 36 hours for non-serious arrestable offences. In our view, there are alternative-and more appropriate-measures in the Bill (such as conditional bail) which will help to alleviate any problems with the existing time constraints. For these reasons, we recommend that Clause 5 be deleted from the Bill (paragraph 23).
(d) We strongly recommend that Clause 7 of the Bill be amended to preserve the existing procedures-which include Parliamentary approval by affirmative resolution-in the following circumstances: first, where a Code is being established for the first time and secondly, where revisions of substantial importance or significance are made to the Codes (paragraph 30).
Bail and Charging (Parts 2 & 4)
(e) We fully support the proposal to impose a 'treatment' condition on the bail of drug misusers. It is essential that sufficient resources are made available for the provision of treatment. We look forward to hearing from the Minister as to his proposals for making appropriate treatment more widely available for purposes of Clause 16 (paragraph 40).
(f) We accept that a power to impose conditions on bail before charge is a necessary and logical part of the move towards charging by the Crown Prosecution Service. However, we would expect this power to be used only where necessary and preferably to avoid detaining a suspect. We recommend that the Association of Chief Police Officers should draft and circulate appropriate guidelines (paragraph 46).
(g) While we welcome the safeguards provided in Schedule 2, in relation to pre-charge conditional bail, we are not convinced that they are sufficient. We therefore considered the following suggestions, which were put to us by our witnesses:
-a strict time limit on the length of conditional bail before charge;
-a requirement that the decision to impose conditions is taken by a police officer not below the rank of Inspector;
-a requirement that the officer has "substantial grounds" for believing that the conditions are necessary for the specified purposes;
-a right of appeal with access to public funding (paragraph 48).
(h) As presently drafted, we believe the Bill gives rise to a risk that onerous conditions may be allowed to run indefinitely. For this reason, we would prefer to see a time limit included in the primary legislation, rather than left to the custody sergeant when imposing the conditions. We agree with John Burbeck, of the Association of Chief Police Officers, that four weeks would be a reasonable time limit and recommend that the Bill be amended accordingly (paragraph 51).
Police Officer not below the rank of Inspector
(i) We believe that the custody sergeant is an officer with an appropriate level of experience for the responsibility of imposing bail conditions before charge because, unlike detention, conditional bail requires the consent of the prospective defendant (paragraph 54).
"Substantial grounds for believing"
(j) We are not convinced that a stronger requirement (such as "substantial grounds for believing") would make any significant difference to police bail decisions in practice (paragraph 56).
Public funding for appeal
(k) There may, therefore, be a case for extending the provision of public funding to suspects before charge (paragraph 58).
Disclosure (Part 5)
(l) We welcome the proposal to apply a single and objective test at both stages of prosecution disclosure (paragraph 62).
(m) We recommend that the Bill be amended so that, where the prosecution wish to interview a defence witness in advance of trial, they should be required to notify the defence and offer to interview the witness in the presence of the defence. We further suggest that any interview be tape-recorded (paragraph 71).
(n) We would prefer to see a provision of this nature be included in the Bill, rather than left to codes of practice. Arguably, defence witnesses require extra protection to ensure equality in this context. In contrast to most defendants, the police and prosecution have vast resources at their disposal with which to apply pressure to defence witnesses, if minded to do so (paragraph 72).
(o) We welcome the Government's decision to narrow its original proposal to require defendants to disclose unused expert reports. Under Clause 30, defendants will only be required to disclose the name and address of experts instructed by him for possible use at trial. We have no difficulty in principle with the revised proposal, as it is less likely to raise issues of privilege (paragraph 74).
(p) While we accept the need for Clause 30, we are not convinced that the measure will work in practice (paragraph 78).
Trials on indictment without a jury (Part 7)
(q) We welcome the Government's decision to retain the defendant's right to elect jury trial in either way cases (paragraph 80).
(r) We believe that the right to trial by jury should be preserved unless there are cogent reasons for conducting the trial without a jury (paragraph 82).
(s) We accept that there may be cogent reasons for dispensing-in some cases-with a jury in a complex financial case. In particular, the length of these cases can place a significant burden on the jury system which, in turn, may reduce dramatically the pool of available jurors. This (arguably) undermines the principle of random selection on which our jury system is based. However, such cases should not be used to undermine generally the jury system which has served well justice in this country (paragraph 89).
(t) We therefore accept that the prosecution should have a right to apply for a trial without a jury. Furthermore, we are satisfied that the defendant's interests are protected adequately by the provision of a right of appeal (paragraph 90).
(u) We do not see why a defendant, who is tried on indictment, should not have the option to waive his right to a jury trial, subject to the conditions specified in the Bill. In our view, the proposal offers the potential for a quicker and cheaper form of trial without affecting adversely the defendant's interests. For these reasons, we welcome the proposal to allow a defendant to apply for a trial without a jury (paragraph 96).
(v) We accept that there are cogent arguments for dispensing with a jury trial where there is a real and present danger of jury tampering (paragraph 99).
(x) We invite the Government to consider the merits of repealing section 8 of the Contempt of Court Act 1981, in order to permit meaningful research into how the jury system operates (paragraph 101).
Double jeopardy (Part 10)
(y) We welcome the provisions of Part 10, which are broadly in line with our predecessors' recommendations for reforming the double jeopardy rule (paragraph 107).
Evidence of bad character (Part 11, chp 1)
(z) We have some difficulty with the proposal to allow the defendant's similar previous convictions to be automatically admitted at trial. In the light of the Oxford Study, we believe that these provisions could lead to miscarriages of justice in some cases. In particular, we are concerned at the prospect of using a defendant's previous record to prop up what might otherwise be a weak case. We are also concerned that this will increase the temptation for the police to pursue the "usual suspects" (paragraph 116).
(aa) We agree that propensity for misconduct should not justify automatic admission of the defendant's bad character (paragraph 119).
(bb) We are concerned at the apparent inequality between the tests for admitting the defendant's bad character, as compared with a non-defendant's bad character. At the moment, a lower test of relevance seems to apply to defendants than to non-defendants. In our view, there should be a standard test requiring the bad character evidence to have "substantial probative value" in relation to a matter in issue, which is itself of substantial importance in the context of the case as a whole (paragraph 122).
(cc) For the reasons given, we recommend that Clauses 84 to 92, which relate to the admissibility of a defendant's bad character, be deleted from the Bill. (Paragraph 123).
Hearsay evidence (Part 11, chp 2)
(dd) In our view, oral testimony given in court is the generally the best form of evidence. We therefore welcome the Government's proposal to preserve the general exclusionary rule against hearsay evidence, with the modified exceptions provided under chapter 2 of Part 11 (paragraph 127).
(ee) We agree with the Law Commission's view that "cross-examination...should be dispensed with only where it is necessary to do so". We therefore share its concern about the effect on the hearsay rule of Schedule 2 to the Criminal Procedure and Investigations Act 1996. We invite the Government to take this opportunity to repeal the offending paragraphs of Schedule 2 to the 1996 Act, as recommended by the Law Commission, or to explain its reasons for not doing so (paragraph 129).
Magistrates' sentencing powers (clauses 137-138)
(ff) We are concerned that the proposed increase in magistrates' sentencing powers will only inflate the prison population unless it is implemented after the Custody Plus scheme is rolled out (paragraph 136).
Possible additions to the Bill
(gg) If the Government is serious about its commitment to banning the practice of payments to witnesses in active criminal proceedings, we would invite it to seize this opportunity to introduce the necessary legislation (paragraph 142).
(hh) We believe that there is a case for extending the reporting restrictions, which preserve the anonymity of victims of sexual offences, to persons accused of those offences. In our view, there are grounds for distinguishing this category of crime from other crime. First, "this is an area where there is a possibility of mistakes being made" and secondly, the damage to those who are never charged, or subsequently acquitted, can be permanent. We invite the Home Office to consider the merits of such a reform by way of amendment to the present Bill (paragraph 145).
(ii) We invite the Home Office to consider whether further safeguards are needed to deal with the dangers of hearsay evidence of an unrecorded cell confession (paragraph 148).