Baroness Chakrabarti (Lab)

My Lords, this group contains two amendments that seek to address dangerous practices relating to criminal evidence. While the Bill does much to protect victims of crime, our justice system must also protect people from becoming victims of miscarriages of justice. Both of the problems we identify have already led to serious wrongful convictions and risk many more in the future. Amendment 61 is in my name and those of the noble Lords, Lord Arbuthnot of Edrom and Lord Beamish, who fought so hard in the other place for the sub-postmasters, and of the noble Baroness, Lady Kidron, who has been such a distinguished campaigner for the rule of law to apply as much to big tech as anyone else. I share Amendment 62 with my old and dear noble friend Lady Lawrence of Clarendon. If honour by association was as easy as guilt by association, I would be honoured indeed. Amendment 61 is a simple amendment that would reinstate Section 69 of the Police and Criminal Evidence Act 1984. It was repealed by the Youth Justice and Criminal Evidence Act 1999 on a recommendation of the Law Commission, but long before contemporary understanding of both the capabilities and fallibilities of digital technology. Under the old Section 69, a party seeking to rely on computer evidence had to show that there was no improper use of the computer, that it was operating properly at all material times and that any faults did not affect output. It allowed for court rules to scrutinise computer evidence. Since the repeal of that vital protection, a common-law presumption of computer reliability and accuracy has applied, in effect reversing the criminal burden of proof in some cases and leading to serious harm, most recently in the Post Office Horizon scandal. Several Justice Ministers have acknowledged this since 2018. The Ministry of Justice released a call for evidence in January 2025. I hope my noble friend the Minister will tell us what has come as a result, because that is too long, I suggest. The presumption is inaccurate, unsafe and far from future-proof. Technology is not infallible, as we saw so graphically in the end with the Fujitsu Horizon scandal. Perhaps my noble friend can also tell us what attempts that corporation has made to recompense the UK taxpayer and the victims of the abuse and scandal. Flaws can be hidden and very difficult for a lone defendant, or even a group of defendants, to detect. They cannot take on the corporation, let alone look in the black box. Developments in artificial intelligence, including the capabilities for deepfakes, make the risks of presuming computer evidence reliability even more dangerous. I hope that the Government will either accept our amendment or offer an alternative in this Bill. The clock is ticking. As for Amendment 62, I ask Members of the Committee to consider whether they have ever indulged in crime procedurals as a guilty pleasure, whether reading them or watching them on their favourite streamer after a long night in Committee in your Lordships’ House. Middle England is addicted to those dramas, whether on TV or in books, and the creativity behind them is big business. But what if those who participated in the creation of that art, or even just enjoyed it, found themselves prosecuted on the basis that that interest was somehow probative of criminal intention or propensity? If noble Lords find that a ridiculous proposition, they should spare a thought for the young Black men and boys who have increasingly been prosecuted with reliance on their enjoyment of rap and drill music. It is disgraceful and has been allowed to go on for some years now. Even more outrageous, there are groups and units of mostly middle-aged white police officers who hold themselves out as expert witnesses to translate this music, these lyrics and the patois for juries. Learned friends at the Bar, including my learned friend Keir Monteith KC, who is currently in the Chamber, have had to take this on in court and have dealt with miscarriages of justice in the Court of Appeal because of this kind of prejudicial and racially prejudiced practice. The figures are not good. The Crown Prosecution Service does not keep records of music evidence being used in this way in court, but studies at the University of Manchester in particular show that there have been many cases: 68 cases involving 252 defendants between 2020 and 2023. That is probably an underestimate, because these are first instance trials and are not always reported. Two-thirds of the defendants in the Manchester study were Black, 12% were mixed race, 82% were under 25 years old, and 15% were aged 17 or younger. Over half the cases were of course joint enterprise prosecutions, because there is a particularly toxic cocktail when you combine the use of this prejudicial material with casting the net so wide as in joint enterprise. In the case of the Manchester 10, Black teenagers were collectively sentenced to 131 years in prison for conspiracy to murder and to cause grievous bodily harm. During the trial, a nine-second video clip of someone identified as one of the defendants, with drill music playing in the background, was used as evidence of his gang membership. In closing, the prosecution Silk told the jury that some of the defendants had become involved in gang culture “because they had an interest in drill … with its themes of violence, drugs and criminality”. “The Night Manager”, anyone? The Court of Appeal found that the young man had been misidentified. There was not even rapping in the video. This is how bad this practice is. He was of good character: head boy and captain of the rugby team, with an unconditional offer to study law—forgive me for being particularly attached to the study of law as a noble pursuit, but I hope noble Lords take my point. His conviction was quashed, but only after serving three years in prison. We talk about equality before the law. That requires that no one is above the law’s reach, nor anyone below its protection. The shameful events currently rocking our politics only highlight the dangers of entitlement, hypocrisy, and the obvious destruction of trust in our vital institutions when there is “one law for some” and no fair hearing for others. This is a modest but vital reform. It would create a presumption that any creative expression on the part of a defendant—not just rap and drill music—should be inadmissible unless four tests are met. First, the expression must have a literal, rather than figurative or fictional, meaning. Secondly, it must refer to the specific facts of the case. Thirdly, it must be relevant to an issue of dispute. Finally, that issue cannot be decided by other evidence.