Police and Justice Bill

moved, as an amendment to Amendment No. 191B, Amendment No. 191C: Leave out lines 25 to 29 and insert- ““““live link”” means an arrangement by which- (a) a person, when not in the place where the hearing is being held, is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded); (b) the person is able privately to seek and obtain advice from and privately to give instructions to his legal representatives in the court; and (c) the person's legal representatives in the court are able privately to seek and obtain instructions from and privately to give advice to the person;”” The noble Baroness said: I shall speak also to my remaining amendments in the group, Amendments Nos. 191C to 191J. Given the late hour, I do not propose on this occasion to speak to the further government amendments or the Liberal Democrat amendments in the group. At first sight, the government amendments appear to be a welcome development, but it is right that the noble Lord, Lord Dholakia, should have tabled his amendments to require the Government to justify their proposals. I entirely agree with the Minister that we will need to consider all these matters further in a constructive way before we reach Report in the autumn. It is always difficult when amendments are tabled at this stage, when a Bill has already passed through another place, to consider new matters of policy, because, when matters return amended from here to another place, another place can debate them only under the procedure for the Commons consideration of Lords amendments—a very truncated procedure subject to the guillotine. I am grateful to the Minister for expediting these matters and bringing them forward in Committee before the Summer Recess. I know that that has put some extra pressure on the Bill team, whose members are to be congratulated on having expedited these matters so that we do not have to wait until Report to deal with them. I am also grateful to the Minister for saying that she fully realises that, although we want to consider the constructive measures proposed by the Government, we will agree tonight on the new clauses being inserted in the Bill on the basis that that is not a hostage to fortune and we may need to return to them after a period of reflection. There is indeed much with which we can agree, but some concerns have been raised about aspects of the new clauses. We are certainly in favour of reducing delay in the criminal justice system. Delay does not serve the interests of the public, the victims or the defendant; all are disserved by it. But if it is to be justice, as the old chestnut has it, it must be seen to be fair. We all agree on that. So I welcome the signal from the Government that they are looking for practical solutions to delays in the criminal justice system. Using modern technology to its best extent is an innovative and practical way forward and could be a real bonus to everyone. The question is whether the Government's proposals are justifiable and appropriate. The noble Baroness has spoken at reasonable length to her amendments and I propose to do the same, in the hope that that will inform those whom we will need to consult during the Summer Recess and considerably shorten any proceedings that we need to undertake at Report. I also say that to assist the Deputy Chairman of Committees, so that he knows that I will not finish in the next minute or two. When I first heard of the new clauses last week, it was on the basis that these proposals were to prevent the churn factor whereby those who are in prison awaiting a bail hearing or sentencing find themselves bussed out at some stage during the day—sometimes after some delay—and taken around the country while various other prisoners are dropped off at other courts, never knowing whether at the end of the day, when they have been sentenced, they will return to the same prison or have to go somewhere else a considerable distance away. Some may have sympathy for the prisoners, and some may not, but one can certainly have sympathy for the system itself, which is not functioning most effectively or efficiently. It is certainly right that the Government should look at practical measures to deal with the problem. Of course, I could have the immediate teasing reaction this evening and say that churn is even worse when the Government have their prisons stuffed full and do not have the proper measures in place to ensure that prisoners are well looked after, and that all they do is let them out on early release to be a threat to the public—but I shall not go down that avenue tonight. I recognise that, whatever the prison population under any Government, it is more practical and proportionate to provide for live links to carry out proceedings that can be more properly dealt with in that way than by upsetting the whole system and involving a lot of people in unnecessary trouble. It is simply a question—our amendments are all about this—of which proceedings should be subject to this expedited procedure. Late last week, when I received the draft new clauses and the covering letter from the Minister, it became clear that the proposals are rather more wide-ranging than we had originally anticipated. A particular concern has been raised by the prospect of a pilot project, to which the Minister has referred, which appeared—I stress ““appeared””—to signal a return of the Government’s plans for night courts. I would be grateful if the Minister, who is shaking her head, could further clarify that. I thank her for her letter, which she and her officials prepared overnight and which arrived in my e-mail just as I came into the Chamber this afternoon. In that helpful letter, for which I am grateful, they refer to the night courts and to the pilot. They also repeat much of the original letter, so I will not do the same. They say that, although the magistrates’ courts participating in the pilot would need to operate rather later than normal court hours, they would not be open all night. That gives rise to two questions. First, can the Minister explain how the new clauses would prevent the introduction of night courts without further legislative provision? Secondly, what consultation has there been with the Magistrates’ Association on the proposals for a pilot in London, and what was its response? The problem is that, although the Minister appears in her covering letter to give some assurance that the provisions are not about night courts, thenew clauses seem to give carte blanche to such a development. This will not surprise the Minister, as I asked this question last night, but, as the proposal is heralded as a pilot, why not have a time limit on the power and then proceed more widely with further enabling powers once the pilot has been shown to work properly? What is the disadvantage in that? I am grateful to the Minister for meeting me yesterday evening to have a preliminary discussion on these matters. I also thank Justice, Liberty, the Prison Reform Trust, the Magistrates’ Association and the Law Society for their very swift response to the first sight that we gave them of the new clauses at the end of last week. My amendments have been tabled simply to raise some of the issues that they raised, and no more at this stage. I am keenly aware of the delays that are sometimes caused by waiting for the defendants in custody to arrive in courts, and we will support any measures that can properly reduce such delays. Although the holding of preliminary and/or sentencing hearings by video link may be sensible and expedient in some cases, it may disadvantage the defendant and the court in others. We believe that a defendant should not be sentenced, give oral evidence or attend an appeal via a video link without his consent, and that he should be legally advised before consent is given. My amendments, as the Minister has recognised, have been tabled simply to raise that concern. One of the disadvantages of live links is thatthey can make it difficult for the defendant to communicate confidentially with his, or her, lawyer. We therefore propose amending the definition of ““live link”” to ensure that facilities are available for such communication to take place. My amendment would ensure that in addition to being able to communicate with the court during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they are not disadvantaged in giving and receiving advice and instructions by reason of the live link. We need to know how that fits in with the protections under PACE and other protection measures to be sure that there is a proper way of people getting advice, and that it is confidential advice. Of course, the ability to give instructions and receive legal advice and confidence is an essential part of the guarantee of a fair trial. It is of particular importance that live links do not compromise the ability to do so. I recognise that the Minister has said that she is not seeking to do that, it just how we get there. It is of even more importance if, as envisaged in the proposed new clauses, first appearances in the magistrates’ courts and sentencing can take place via the live link. Surely, that could mean that in some cases the only meeting between the defendant and his legal representative could be via the link. I look back to the second paragraph of the noble Baroness’s letter that came overnight in which she says: "““Facilities whereby the defendant could take confidential advice from his lawyer before a hearing and speak to his lawyer by telephone during the hearing would be available for the sentencing and appeal hearings for which links could be used if these amendments were passed””." That part of the letter, which has not yet been seen by outside organisations, needs to be considered by them, because I think that the noble Baroness has taken us one stage further. Other amendments in my group provide that the court should not proceed via live link without the defendant’s informed consent, following legal advice. The presence of the defendant in the court at pre-trial and sentencing hearings is an important safeguard for several human rights under the ECHR. As we have often said, the scars of self harm or abuse may be much more evident to the eye in person than on the video link, but it would have to be taken into account in any move forward in the way in which the Government propose. The proposal that a person could plead guilty and be sentenced by the magistrates from police custody perhaps creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. I know that the noble Baroness will return to issues about PACE and protections in the system. It is a concern that it may influence the police and the CPS in making charging decisions to charge a person and put them before the video link court rather than using alternative disposals such as cautions and restorative solutions. We have certainly supported the Government in seeking those alternatives in the past. The Magistrates’ Association says that it has a serious objection to the idea of custody including police stations and local authority accommodation. It finds this entirely unacceptable and says that the reason given by the noble Baroness in her first letter—because it has not seen the second letter—is alarming. It says that the concept of someone being taken to a police station, charged and then being offered an immediate court hearing by video link, rather than spending a night in custody, is an obvious example of pressure and improper incentive. It feels that this would not be efficiency but improper haste where the safeguards might not be adequate. I would be grateful if the noble Baroness could respond to the Magistrates’ Association’s concerns, which she may want to do more fully in a letter to me and perhaps the association. I feel sure that she will seek to talk to its members during the Summer Recess. In conclusion, our amendments would ensure that a defendant should be sentenced or give evidence via live link only with his consent, and that the potential disadvantages of so doing should be explained to the defendant by his legal representatives before he gives that consent. In particular, I would be most grateful if the Minister could clarify whether there are any occasions on which live links will be used where a person is not required to give his or her express consent. I beg to move.