Jonathan Marks writes: Criminal Justice and Courts Bill comes to the Lords  

JusticeThe Lib Dems should be proud that under the Coalition Government crime is falling and fast – in 2013 there was a drop in offences overall of 15%, including a drop in violent crime of 12%, continuing a trend that has been continuous for more than five years.  Crime is now at its lowest level for more than 30 years.

This Bill marks the Coalition Government’s commitment to keep the pressure on to drive down crime.  There is much in it that is good.

The Lib Dems have led the way on a number of key issues. The hard work of Paul Burstow, and Lib Dem Care Minister Norman Lamb, has ensured that wilful neglect by care workers will become a new offence. This is a vital step to ensuring that some of the horrific treatment of patients and those in care that we saw at Mid-Staffordshire Hospital and the Winterbourne Care Home never happens again.

Thanks to the Lib Dems the Bill also makes progress in tackling police corruption by ensuring that police officers have special powers and responsibilities and they must not abuse them corruptly or improperly.

While the Bill as it stands contains a number of important issues, Lib Dems in the Lords will also use it to support Julian Huppert MP’s important campaign to outlaw ‘revenge porn’.  As Julian explains here, revenge porn is a growing problem that has the potential to ruin people’s lives.  It is absolutely right that we seek to punish people who breech the trust of others in such a serious way.

Although there is much we support in the Bill, this is not to say that we are happy with everything it contains.  There are a number of illiberal clauses which Lib Dems will oppose and others we will seek to change.  We will oppose the populist move to have mandatory sentencing for those convicted of a second offence of carrying a knife.  Compulsory custodial sentences are the wrong way to tackle the problem of knife crime and the gang culture to which the crime is often related. Mandatory sentencing would stop judges deciding who deserves prison and whether prison will do any good in a particular case.  They will affect young black people disproportionately – because more of them are subject to stop and search.  There is no proof that compulsory prison works and risks bringing more young people into harm’s way as gangs seek to force under 16s to carry knives for others because they are not caught by the mandatory sentencing proposals.  As Julian Huppert said in the Commons:

The question is whether we should be trying to take the thing that sounds the toughest or whether we should try to do the things that actually work.

The introduction of secure colleges also raises a concern. Clearly, we strongly support more education in prison and for detained young offenders – indeed this was something we proposed in the 2010 Manifesto.   However, we do have concerns that secure colleges risk putting young offenders in large institutions far away from home, instead of smaller ones with more personalised care and more links with their families.  We will also question how courses are to be organised.  Offenders are sentenced all year round, not just at the beginning of college terms; and their sentences vary in length; college style courses may simply not work.  Lib Dem peers will be examining these proposals very carefully in order to understand how these new institutions can overcome these practical problems.

For many, the most concerning aspects of the Bill are the proposals for judicial review.  Judicial review is the citizen’s precious right to challenge the Executive in the courts, where government acts unlawfully or exceeds its powers. Governments don’t like being challenged – it is inconvenient. But we must protect the right of challenge and again we must trust the judges.

The measures proposed in the Bill for judicial review carry a real risk that they could deter people with means from supporting legal challenges, by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally.  The proposals could also prevent campaigning organisations and others from joining in on cases as “interveners” to put the public’s case, by making interveners pay all parties’ costs of their intervention – and prevent them from getting their costs even where they win and show that Government is in the wrong.  The Bill would also only allow the courts to protect litigants from costs orders against them in cases of general public importance.

All these issues risk undermining the rights of innocent members of the public who has been wronged in a particular but unusual case of Government irrationality. There may often be good reasons for some of these proposals to be available to judges where they think that a judicial review puts an unfair strain on the Government or that the person involved should be mindful of the cost of their case.  However, many Lib Dem Peers are concerned that the Bill contains an authoritarian theme of ‘Don’t trust the judges’.  Throughout the passage of the Bill we will be working hard to ensure that judges are able to make decisions based on the cases in front of them and that those wanting to challenge the Government remain able to do so.

* Lord Jonathan Marks is a barrister and Lib Dem peer

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  • “The Lib Dems should be proud that under the Coalition Government crime is falling and fast”

    Oh for goodness sake, do stop this kind of nonsense !

    Crime rates have been falling for years apparently & it has nothing whatsoever to do with the people occupying the govt side of the Commons !!

  • James Sandbach 1st Jul '14 - 5:19pm

    You gave an excellent speech Jonathan – especially your comments on the executive seeking to over-ride Judicial discretion; there should be better ways for the Govt. to work with the Judiciary on perceived problems using existing judicial toolkits.

    A plea though – please don’t ‘trade of’ getting a ‘revenge porn’ offence (important though it is) into the Bill against back down on substantially amending the JR provisions which as they stand would wreck the JR system; that would be just the sort of grubby little compromise that would do us no credit at all. Second priority should be ensuring that Secure colleges are not set up ‘boot camps’ in which force and restraint etc are legitimised and routine. And please have a look at the issues around the Criminal Courts Charge (you don’t mention this) which would push offenders further into financial exclusion!

  • jedibeeftrix 2nd Jul '14 - 10:20am

    ” .Compulsory custodial sentences are the wrong way to tackle the problem of knife crime and the gang culture to which the crime is often related. Mandatory sentencing would stop judges deciding who deserves prison and whether prison will do any good in a particular case. They will affect young black people disproportionately – because more of them are subject to stop and search.”

    Surely this will affect disproportionately people carrying knives without good reason, regardless of their colour of likelihood of being subjected to stop and search (which must be done with probable cause ascertained)?

    Cart before horse, much…

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