Liberal Democrat peers seek to require chief officers of police to receive the prior authorisation of a circuit judge before they cause entry to be made into people's homes and offices for the purpose of planting bugs.
The Labour amendment was also passed with Liberal-Democrat support, but it is far less satisfactory. Labour proposes that an authorisation to burgle and bug already given by a chief constable shall not take effect without the approval of a commissioner appointed by the Prime Minister. It envisages that there should be three commissioners for the whole of England and Wales, who shall be High Court judges or above. Prior approval is not required under the Labour amendment where it is not "reasonably practicable".
Labour should not make obeisance to the judicial hierarchy. I would be surprised if a quarter of the distinguished and eminent brother- and sisterhood of the High Court bench had ever met their clients in the comfort of the prison cell, or had dealt hands-on with the responsibilities of prosecuting counsel within 20 years of their appointment. The flower of commercial and civil practitioners do adapt surprisingly quickly to the conduct of criminal trials as High Court judges, but the Old Bailey is not their natural home.
The great wealth of experience of the criminal law and its practice resides in the circuit judges not just of that court, but of all Crown courts throughout the country. They live in the community where they sit as judges. They know the temper of the people, and have experience of their police forces.
Every day, they fulfil their role in holding the balance fairly between the interests of the public, whose protection is their immediate concern, and those of the accused individual before them.
Circuit judges are readily accessible at all times to police officers seeking an authorisation under the proposed Act. Toughened by practical experience, they are not noted to be soft on crime or criminals. The excuse that it is not "reasonably practicable" to go to London will frequently be made - it is foolish to suggest that High Court judges in London can make a better-informed, fairer or quicker judgment on an application for approval than local judges on the spot.
The Labour front bench should swallow their pride: their recent U-turn on this issue was made so hastily that they sought to save face with a hurried solution of their own. Failure to follow the Liberal Democrat lead in its entirety has produced a less practical and sensible response.
Lord THOMAS OF GRESFORD QC
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