CRIMINAL APPEAL (AMENDMENT) (Hansard, 10 February 1976)

§ Mr. Bruce Douglas-Mann (Mitcham and Morden)

I beg to move, That leave be given to bring in a Bill to amend the Criminal Appeal Act 1968 to facilitate the receipt of fresh evidence by the Court of Appeal, Criminal Division, in cases referred to that court by the Secretary of State; and with respect to the adjudication of such cases; and for connected purposes. The objects of the Bill are to make it easier to correct serious miscarriages of justice in which a man has been sentenced to a term of imprisonment for a crime and the Secretary of State has become sufficiently concerned about the case to refer it back to the Court of Appeal.

Inevitably, the number of cases referred by the Secretary of State is small. Equally inevitably, because of the time that the process takes, it is only very serious cases which are likely to be referred—in other words, cases in which the appellant is serving a long term of imprisonment for a crime of which he continues to protest his innocence and has caused some serious doubt in the mind of the Home Secretary sufficient to make the right hon. Gentleman refer the case back to the Court of Appeal.

The Bill would alter the present procedure in two respects. In cases referred to the Court of Appeal, Criminal Division, by the Home Secretary, the Court would have no obligation to admit fresh evidence, even if that evidence had been available at the original time but because, perhaps, of an error on the part of counsel or for some other reason it had not been called at the trial. At present, fresh evidence is admissible only if there is a reasonable explanation for the fact that it was not called. One object of the Bill would be to remove that proviso in exceptional cases referred to the Court of Appeal, Criminal Division, by the Home Secretary.

Secondly, and probably more important, the Bill would impose on the Court, unless the Home Secretary directed that the Court should confine itself to the narrower issue, the obligation to consider the whole of the evidence, both old the whole of the evidence had been and new, and to ask itself whether, if before the court at the original trial, it is 250 probable that a reasonable jury, properly directed, would have brought in a verdict of guilty. At present there is a grave danger in any case that goes to the Court of Appeal, Criminal Division, even when fresh evidence is admitted, that the Court asks itself, in effect, whether that new evidence really proves the appellant's innocence. In a case before the Court of Appeal the burden of proof is on the appellant, who has to prove that if the fresh evidence had been presented earlier no reasonable jury could have convicted him. I submit that that is not the right test. It should be whether, with the whole of the evidence before the jury and the jury having been properly directed and told that they had a duty to acquit if they had a reasonable doubt, any jury would in those circumstances have been likely to convict.

It may well be a valid criticism of my Bill that it is too narrow and that it is restricted to the exceptional cases referred by the Home Secretary. I accept that there is need of a wider reform, but that would be outside the scope of a Ten-Minute Bill.

In support of my argument that a Bill of this kind is needed I would refer to only one case, though there are a number of cases of which I have knowledge. I quote from the report of Justice for June 1975 concerning a Luton murder case, in which three men were convicted in 1969 of the murder of a Luton sub-Postmaster virtually on the sole evidence of an accomplice Alfred Matthews. Their original applications for leave to appeal were dismissed but in December, 1972 the Home Secretary referred the conviction of Patrick Murphy back to the Court of Appeal because a new alibi witness had been found who was not available at the trial. The Court of Appeal found this witness to be wholly reliable and credible and quashed Murphy's conviction. In May, 1974 as a result of representations made and new material submitted…the Home Secretary referred the cases of the other two men, David Cooper and Michael McMahon, back to the Court of Appeal asking it to reconsider their convictions. In his Letter of Reference, the Home Secretary said that the acquittal of Murphy raised questions about the credibility of Matthews which he desired the court to resolve. Nevertheless, the Court of Appeal without referring to the occasions when further cross-examination had been ordered, held that the Criminal Appeal Act, 1968 did not permit it to order the further cross-examination of Matthews. It conceded, however, that there 251 was new material affecting the credibility of Matthews upon which it would be proper to cross-examine him. It concluded that the jury, despite the acquittal of Murphy, might well have convicted Cooper and McMahon. The appeals were dismissed. The Court of Appeal subsequently found that no point of law of general public importance was involved in their decision, and the application for a Certificate to apply for leave to appeal to the House of Lords was refused. Our criminal and judicial process works, on the whole, efficiently and fairly. As a Member of Parliament and a solicitor with some experience in criminal cases, I have very seldom come across cases in which I have been convinced that a wholly innocent man has been convicted of a serious offence. I know, however, of at least one such case. The man in question, whom I believe to be completely innocent, is still in prison serving a long sentence of imprisonment with many years of his sentence still in front of him, probably more years than he would have to serve if he were guilty, because he cannot tell the Parole Board "I am sorry, I have repented" when he is still maintaining, I believe absolutely rightly, that he is innocent of the offence.

I believe that my right hon. Friend the Home Secretary would be willing to refer the case to the Court of Appeal if I were to press him to do so, but the new evidence available, to the extent that it is admissible, does not prove the man's innocence. It could be false, but, taken in conjunction with the very thin evidence on which he was convicted it would un- 252 doubtedly, to my mind, have ensured his acquittal if it had been presented at his original trial. With the law as it now stands, I fear that the Court would dismiss the man's appeal but with my Bill I believe that the Court would surely allow the appeal and that justice would be better served.

I believe that my Bill, which is supported by lawyers on both sides of the House, will greatly improve the administration of justice and ensure the safety valve that we need in very rare but nevertheless alarming cases of serious miscarriage of justice. I commend it to the House.