HC Deb 25 July 1990 vol 177 cc561-76

'.—(1) The Lord Chancellor shall establish an Independent Review Body to advise him on the annulment, cancellation or revocation of a conviction applicable to cases currently considered by the Secretary of State and by the Court of Appeal.

(2) The Independent Review Body shall consist of a legally qualified Chairman and up to 12 additional persons appointed by the Lord Chancellor.

(3) Membership will include a proportion of criminal lawyers but legal experience will not be regarded as the sole qualification.

(4) Casework would be distributed to a panel of up to three persons but in all cases the conclusions would be endorsed by the Review Body as a whole.

(5) The Review Body would be extra-judicial but would have the widest discretion as to the procedures to be adopted in any individual case.

(6) The Independent Review Body would be supplied with the relevant facts and papers relating to a case by the Home Office and make a recommendation to the Secretary of State after either—

  1. (a) an informal inquiry or
  2. (b) a full hearing with legal representation on both sides with the ability to recommend the award of legal aid in respect of representation by Counsel.'.—[Mr. Mullin.]

Brought up, and read the First time.

Mr. Deputy Speaker

With this, it will be convenient to consider amendment No. 10, in title, line 6, after 'Board', insert 'and an Independent Review Body'.

8.30 pm
Mr. Chris Mullin (Sunderland, South)

I beg to move, That the clause be read a Second time.

New clause 5 seeks to implement the recommendation of the Select Committee on Home Affairs in its 1982 report on miscarriages of justice. Had it been implemented then, there is little doubt that a number of the problems that have arisen since in our judicial system might not have done so. The new clause seeks to establish an independent review tribunal composed to a large extent but not exclusively of non-lawyers. A useful precedent has been set by the inquiry currently being conducted by Lord Justice May into the Guildford, Woolwich and Maguire convictions, in which he is accompanied by lay assessors. New clause 5 would allow a tribunal wide discretion in regard to procedure, and I hope that it would also have powers to subpoena witnesses and documents. One of the problems confronting Sir John May was persuading some witnesses to give evidence and to produce relevant documents, and we should learn from that lesson.

Sir John Wheeler (Westminster, North)

It is very good of the hon. Member for Sunderland, South (Mr. Mullin) to have given me notice of his intention to raise that subject and to refer to the 1982 Select Committee on Home Affairs. I am sure that the lessons to be drawn from the 1982 report are just as appropriate today, and perhaps the House and the Select Committee itself would do well to return to that topic once Lord Justice May has reported, to see what additional lessons are to be learned. Perhaps the hon. Member for Sunderland, South agrees also that it will be important to consider Sir John's conclusions with great care against the 1982 report and tonight's debate.

Mr. Mullin

I am grateful for that intervention, and I agree with the hon. Member for Westminster, North (Sir J. Wheeler), who occupies a distinguished position as chairman of the Home Affairs Select Committee now, and who was a member of it when it made the recommendations to which I refer in 1982. I look forward to the Committee returning to the subject under his guidance, because he appreciates, as do many right hon. and hon. Members of all political persuasions, that it is an issue that will not go away.

New clause 5 would allow the tribunal to consider evidence deemed inadmissable by the courts. I hope that one other matter considered by the Committee in 1982 will also be resolved in the terms of reference of any independent review tribunal, I refer to the requirement that the burden of proof must remain with the Crown to secure a conviction and not, as is increasingly the case, with defendants, to prove their innocence.

That relates to a fundamental principle of our judicial system, but regrettably, in a number of recent referrals to the Court of Appeal, it has appeared—I speak as someone who attended the Birmingham pub bombings appeal on several days in 1987 and early 1988—that defendants are required instead to prove their innocence. Our current law does not require them to do so. That point is one to which the Select Committee's 1982 report specifically drew attention, and I hope that that issue will be resolved once and for all.

The recommendations of the 1982 report received unanimous approval. That Committee was chaired by Sir John Eden, and its other members included the hon. Members for Birmingham, Edgbaston (Dame J. Knight), who is not regarded as being on the wet side of the Conservative party, and for Reigate (Mr. Gardiner), who is also not regarded as a member of the soggy, bleeding-heart wing of the Conservative party. I take heart from the fact that they all subscribed in 1982 to the report's conclusions, and I regret that one or two of them cannot be present this evening, to say whether they have since changed their minds or still stand by the recommendations to which they put their signatures some time ago.

The terms of new clause 5 were first embodied in an amendment in the name of the hon. Member for Harborough (Sir J. Farr) and myself to the Criminal Justice Bill in June 1988. During my short time as a Member of Parliament, it has been a pleasure to be associated with the hon. Member for Harborough in respect of such issues. It will be apparent to you, Mr. Deputy Speaker, that the political views of the hon. Member for Harborough and myself cover a wide spectrum. If that hon. Gentleman and I can agree on an issue, it should not be all that difficult for other right hon. and hon. Members to follow us. I pay tribute also to the consistency with which the hon. Member for Harborough was prepared to pursue the case of the six innocent men wrongly convicted of the Birmingham pub bombings long before it was a popular issue.

New clause 5 represents an idea whose time has come. As long ago as 1982, the Select Committee on Home Affairs, in the wake of a number of appalling miscarriages of justice, decided to investigate that topic, and reported that, with the exception of the Home Office witnesses, it interviewed no one who was against the idea of an independent tribunal. As long ago as 1976, the distinguished Lord Devlin first mooted the idea, and I am pleased to note that in their evidence to Sir John May's committee, the Bar Council, the Law Society and a host of other witnesses have called for some form of independent review tribunal.

I have received many letters on that and related issues, including one from a Law Lord giving the concept his support. I shall not embarrass him by naming him, as he would probably be blackballed from his club. When Sir John May reports, I hope that he will make such a recommendation, but we must be prepared for the possibility that he might not do so.

Everything that has happened in the eight years since the Select Committee's report confirms that wisdom of its recommendations, which were rejected by the Government. Had an independent review tribunal been in place there is no doubt that the Guildford and Woolwich convictions would have been overturned many years ago and without the anguish caused to the individuals directly concerned and to many others. The Maguire family would have had their convictions quashed many years ago and the people wrongly convicted of the Birmingham pub bombings would also have had their cases resolved some years ago.

The Birmingham case is particularly relevant because the case is deadlocked. The big problem is the Court of Appeal. The Birmingham case has already been to the Court of Appeal, where a mass of new evidence was presented. Instead of ordering a retrial, the Court of Appeal decided to adjudicate upon the new evidence itself in the absence of a jury. It threw out the appeal with contempt.

The problem is that the case is destined to go back to the Court of Appeal. However, no one who is conversant with the case believes that the Lord Chief Justice who presided at the previous appeal will accept any degree of the new evidence which may be put before him. No-one conversant with the issue has much faith in the Court of Appeal. That is why we are looking for an alternative way, in particular cases, of breaking the deadlock.

The purpose of the court of last resort, as it is sometimes called, or the independent review tribunal, is to correct mistakes. I do not complain about the fact that mistakes are made by our courts. Any legal system, however perfect, will make mistakes. I complain about the fact that we do not appear to have an adequate mechanism for owning up to mistakes and to a large extent that is due to the belief among senior members of the legal profession, that the system cannot make mistakes. One or two of those people have been frank enough to say that out loud and that does nothing to improve their credibility among those of us who mix in the real world.

For example, Sir David Maxwell Fyfe, who subsequently became Home Secretary, said in the House on 14 April 1948: As a realist I do not believe that the chances of error in a murder case, with these various instruments of the State present, constitute a factor which we must consider … There is no practical possibility. The hon. and learned Member asks me to say that there is no possibility. Of course, a jury might go wrong, the Court of Criminal Appeal might go wrong, as might the House of Lords and the Home Secretary: they might all be stricken mad and go wrong. But that is not a possibility which anyone can consider lightly. The hon. and learned Member"— that is, whoever put that startling proposition to Sir David Maxwell Fyfe— is moving into a realm of fantasy when he makes that suggestion."—[Official Report, 14 April 1948; Vol. 449, c. 1077.] That is how difficult it is to persuade senior lawyers of the possibility that the legal system is capable of making mistakes. In passing, I mention that Sir David Maxwell Fyfe went on to hang Derek Bentley, who is widely regarded as having been innocent.

The next difficulty facing those of us who have attempted to raise serious miscarriages of justice is the belief among certain senior sections of the legal profession—I do not suggest that it is shared by all—that mistakes should not be admitted if they bring into question the credibility of the legal system. For that, we must be grateful to Lord Denning who, as so often, said out loud what others say only in the privacy of their clubs. In the spring of 1988, in a BBC2 programme entitled "Did you See?", he said in so many words that there were circumstances in which persons who were innocent should remain in gaol if the credibility of the legal system was threatened. I am grateful to him for saying that, because that describes fairly graphically, and brings home to many people, the problem that we face.

The Attorney-General

Would it not be fair to record that Lord Denning, with customary grace, has said publicly that he regards the opinion that he expressed then as a serious mistake?

8.45 pm
Mr. Mullin

I was not aware of that, but I will take the Attorney-General's word for it. The opinion on which I know Lord Denning has backtracked is the judgment that he gave in 1980 when the Birmingham pub bombing appeal was referred to him and he made that remarkable and much quoted statement about the appalling vista that would arise if he were to allow the appeal. He has said that he was mistaken about that. We always welcome, however late in the day, a conversion; it is not for me to pour scorn on that.

All those who have campaigned over many years about the more celebrated cases of miscarriages of justice have had to face the problem of the extraordinary stubbornness of senior individuals in the legal system, due in part to their sheltered upbringings. Many of them tell us—having listened to some of their pronouncements, I am inclined to agree—that they have fine minds and are very intelligent. However, I am often struck by the fact that people who are so intelligent can also be very stupid at the same time, and that trait—I put it no higher than that—is to be found in some of the judicial responses to some of the more celebrated miscarriages of justice. That is why we need an independent review tribunal which is slightly more flexible than the Court of Appeal.

I will cite a few examples to make my point. Timothy Evans was hanged by mistake in 1950. In 1953, the person who carried out the murder for which Evans was executed—John Reginald Halliday Christie—was arrested and it was obvious to everyone concerned that he was responsible for the murder—everyone concerned, that is, except some of those at the highest levels of the legal profession. An inquiry was set up under Mr. Scott Henderson which found that there was nothing to worry about.

A further inquiry under Mr. Justice or Lord Justice Brabin found, I believe—the Attorney-General will correct me if I am wrong—that while Evans might not have murdered his wife, he must have murdered the baby. That was complete nonsense, but it was not until 1966—after a campaign at least as great as that in relation to the Birmingham and Guildford cases—that the Home Secretary was finally prevailed upon to offer Timothy Evans a posthumous pardon. Even now, one or two hon. Members—lawyers, of course—have approached me saying that Evans was guilty all along.

In the Confait case, an inquiry set up under Sir Henry Fisher concluded that the youths who had just been released were probably guilty. Sir Henry had to be repudiated when the person responsible came forward.

In the Meehan case, Patrick Meehan was released from a life sentence and an inquiry was set up under Lord Hunter, a senior Scottish judge. That inquiry concluded that Meehan was probably guilty. Lord Hunter had to be repudiated when Meehan was compensated.

Perhaps the most celebrated illustration in recent years of difficulties with the Court of Appeal is the case of Cooper and McMahon, who were convicted in 1970 of a post office murder in Luton. It swiftly became apparent to most sensible people that there was something seriously wrong with the case. Four successive Home Secretaries referred the Cooper and McMahon case back to the Court of Appeal on four successive occasions. On each occasion the judges sat stony faced and said that they had heard nothing new. In the end, the Home Secretary of the day, now Lord Whitelaw, became so exasperated because he could think of no way of persuading the Court of Appeal to face up to what had gone wrong, that he simply ordered the gates of the prison to be opened, gave the men railway tickets and sent them home. That is how difficult it is to persuade the Court of Appeal to face up to serious mistakes.

Anyone who has read the judgment of Lord Roskill at the Guildford appeal in 1976 or 1977 will realise that that was an opportunity to end the Guildford case 13 years ago. It was obvious to everyone concerned that a mistake had been made. I commend to students of the subject the judgment of Lord Roskill explaining why those convictions were still satisfactory.

A department exists within the Home Office—I believe that it is called C3—to advise the Home Secretary on cases where there is cause for concern. I have had some dealings with that department. I have always found the individuals who work there courteous and well meaning but, generally speaking, useless at resolving problems. That is not their fault, but the fault of the system of which they form a part. They do not appear to have the power to conduct the slightest independent research, even to the extent of lifting a telephone, and their job seems to consist merely of poking holes in evidence submitted by others. I recall that Sir David Napley, who was interviewed by the Select Committee in 1982, said that he could not think of one case in which the C3 department took the initiative in getting a conviction quashed.

Anyone who doubts the difficulty with the C3 department should read the 22-page memorandum placed in the Library by the Home Secretary two years ago—no doubt it was drafted by the C3 department—explaining why the Maguire convictions were safe and sound. There is even a page on why innocent contamination could not possibly be the cause of the difficulty, although the Home Secretary—no doubt prompted by the C3 department—now takes the view that innocent contamination is the latest fallback position. Anyone who wishes to celebrate the effectiveness of the present system should study that memorandum.

In 1983, the Government replied to the Select Committee rejecting its principal recommendation on the independent review tribunal saying that convictions were primarily a matter for the courts to decide. However, the Government sought the advice of the Lord Chief Justice, Lord Lane, who promised some greater flexibility in terms of ordering retrials and accepting references back from the Home Secretary.

If such a promise was made, it was reneged upon. In the Birmingham case, the judges immediately rejected with contempt an application for a retrial, although there was an enormous amount of new fact upon which a judgment would have to be made. At the end of the Birmingham judgment, which is fairly scandalous, the Lord Chief Justice went so far as to say, "As with so many cases referred to us by the Home Office, the longer it went on, the more convinced we became that the original convictions were safe." That was a message to the Home Secretary, because the Guildford and Woolwich cases were then in the pipeline. It meant, "Don't waste our time sending any more of these cases, because this is how they will end." That is how it was read by many at the time and we now know what happened.

I should like to think that the Government, and indeed all of us, have learnt some lessons from the experience of events in the past two years, particularly from the Guildford, Woolwich and Maguire cases, but I suspect that that may not be the case. I am delighted that the Labour party and my right hon. and learned Friend, the Member for Aberavon (Mr. Morris) broadly support an independent review tribunal. I welcome the support that that proposal has received from hon. Members from all parties. If the judges are unhappy about the suggestion, they have only themselves to blame. There have been many opportunities over the past decade or so for something to be done about those great scandals and I regret that they have not faced up to them.

An independent review tribunal is only one of the number of measures that will be necessary to restore the public credibility of the judicial system. We shall also have to stop convicting people on the basis of confessions obtained in police custody, which form the main part of the most celebrated wrongful convictions. We shall have to review the training and selection of judges and, in the light of what Sir John May recommends, we shall have to examine carefully the forensic service.

Our judicial system is being brought into discredit around the world by its inability to face up to mistakes. That is why I commend new clause 5 to the House.

Mr. John Morris

My hon. Friend the Member for Sunderland, South (Mr. Mullin) and the hon. Member for Harborough (Sir J. Farr) have done the House a service by tabling new clause 5, which is perhaps one of the most important proposals that we are discussing tonight. I fear that there is increasing concern about appellate procedures in cases in which there is some tension and emotion and particularly in terrorist cases. The track record in recent and not so recent trials of that nature and the limited view taken by the Court of Appeal are causes for concern. The existing machinery obviously needs to be improved.

Against that background, the Labour party has published proposals for the need for an independent review body to investigate suspected miscarriages of justice. What eventually emerges may not necessarily be in the precise form as presently proposed. The proposals emphasise the need for a wide consultative procedure that must include the composition of the review body and the establishment of an effective, impartial and independent body to investigate miscarriages of justice. That certainly does not exist now to the satisfaction of the general public. As far back as 1982, the Home Affairs Select Committee report and Justice—an eminent and experienced body of which I am a humble member—reported in that vein. The problem simply will not go away and there is increasing disquiet about our existing procedures.

I am not wedded to the exact form of words proposed by my hon. Friend, but he is right in principle. There is a need for a new body able to take a wider view and, where necessary, to take the case apart. If we had permanent machinery of that sort, there would be no need for ad hoc inquiries. Indeed, the establishment of ad hoc inquiries makes the case for some sort of body and the case for making it permanent is made out by the increasing concern about a whole spate of cases.

As a practitioner who from time to time finds himself before the Court of Appeal, I want to make it clear that the Court of Appeal does an effective and satisfactory job for the run-of-the-mill case. I say that in no patronising way. One is not always pleased with the results. That is another matter and may involve a subjective rather than an objective view. It is not the independence of the Court of Appeal that is the cardinal point; it is the type of remit that custom, practice and legislation give it. After all, it is a creature of statute. That is the heart of the problem.

9 pm

The cases considered by the Secretary of State and the investigative machinery at his disposal frequently cause concern. My hon. Friend has gone to some lengths to describe that machinery. I accept that serious mistakes can and do happen. I fear that even in future, with the most ideal, new radical machinery, mistakes will happen. Our job is to limit the chances of mistakes happening and to have machinery to correct them as speedily as possible. The convention is that, short of a political earthquake coupled with some evidence, nothing is done. It is an indictment of the present system that it needs a sustained campaign by the great and the good for action to be taken.

My hon. Friend is proposing an independent body which will be open in its inquisitions and will be the trigger for action by the Home Secretary. It is the sifting machinery, preliminary to a Sir John May inquiry, which is necessary. It is adumbrated here that there could well be a full hearing, presumably by the body itself. I am not sure whether that is necessarily the right way to proceed, but we are trying to find the best solution.

One could go on at great length, but I shall not do so tonight. The problem will not go away. There is a need for new investigative machinery. Justice delayed is justice denied. It is wrong that under present procedures decades must go by—a third or a half of a working life—before justice is done. That cannot be right.

In this age of new technology, with new tests and machinery every day, there is a lack of balance between what is available to the Crown prosecuting a case and what is available to the defence. An individual, certainly one on legal aid, cannot have all the resources necessary for scientific tests that sometimes border on the frontiers of knowledge. Government agencies exist to serve the people as a whole, not merely the organs of Government. Therefore, where appropriate, they should be available to assist and advise individuals who appear before the Queen's courts.

I certainly accept the principle, if not the words, of my hon. Friend's amendment. I am sure that we shall return to the matter again. As the Chairman of the Home Affairs Select Committee suggested, once Sir John May has reported, it may be wise and prudent for the Select Committee to return to the subject again.

Sir John Farr (Harborough)

I support the remarks of the hon. Member for Sunderland, South (Mr. Mullin) and the cogent remarks of the right hon. and learned Member for Aberavon (Mr. Morris). I do not think that I am a rarity on this side of the House, but I am certainly one among perhaps not all that many in the Conservative ranks who consider that a succession of miscarriages of justice have come to the forefront, even since the Criminal Justice Bill of 1988, in respect of which I tabled a new clause, was considered in Committee. We did not even imagine the horrendous outcome that the hon. Member for Sunderland, South suggested in relation to the Maguire and Guildford cases. I do not think that even the hon. Gentleman dreamed that his worst fears would be realised.

My interest, apart from that of any ordinary person, whether Conservative, Labour, Social Democrat or whatever, is to correct a miscarriage of justice. I firmly believe that my hon. Friend the Member for Westminster, North (Sir J. Wheeler), who was on the Select Committee, was right when he said that something had to be done. Unfortunately, his cogent remark was only an intervention. Had he been making a speech, I would probably have intervened and asked him why it had taken so long and eight years is a lifetime for people who have been wrongly imprisoned.

The hon. Member for Sunderland, South referred to my interest in the Birmingham Six, which may or may not be well known. I happened to be concerned about them, which may or may not be well known, because one or two of them are in Gartree prison in my constituency. When they first went in, they asked me to do a bit of photocopying for them because the prison rules in respect of the photocopier are strict. While I was photocopying their petition to Justice and other organisations, I became interested in their story. I did some investigation. Of course, about five or six years ago, there was a story in the Sunday papers about forensic tests that were said to be bogus. The Gries test was shown by some Sunday papers to be bogus. The Gries test was the forensic test that sent down the Birmingham Six, and they are still inside.

As an ordinary citizen, I am interested in miscarriages of justice. Anything must be better than the present arrangement. That is what I tried to say when I moved my new clause when the Criminal Justice Bill was considered in Committee a couple of years ago. That is why I am pleased also to be associated with the hon. Member for Sunderland, South in the new clause. Let us hope that it will not be another few years before something is done.

I cannot see any reason—I never shall—why the findings of a Select Committee that was set up to deal with miscarriages of justice should be totally ignored by the House. At that time, my new clause was considered at 1 o'clock in the morning—hardly a key time of the day. This debate is an improvement on that. There was a unanimous recommendation by a Select Committee, many members of which are still in the House. It is just not good enough to forget it. I charge my right hon. and learned Friend, for whom I have great admiration, as I have for all of my Government lawyer friends, at least to have another look at the Select Committee's recommendations. If their recommendations are put into effect and the kind of miscarriage of justice that occurred in the case of the Birmingham Six is not allowed to happen again, we shall have done some good.

Many professional lawyers think that the layman is trying to bind their hands. We are trying to do nothing of the sort; we are leaving the legal system intact. In 1982, the Law Society was strongly in favour, as was the Criminal Bar Association, of an independent review body. Both said that it would be sensible to provide a little more expert advice to the Home Secretary, who has an impossible job. However brilliant one may be, it is impossible to be right all the time. An independent review body, based on the recommendations in the Select Committee's report, ought to be established soon. I have great pleasure in supporting the new clause.

Mr. Bermingham

I support the concept of a court of final appeal, although for none of the reasons given so far. I do not believe that it is constructive to look at past examples; one has to consider generalities. In too many instances the arguments advanced in support of a court of final referees have related to a particular case. That is unwise. Anyone who believes that a particular system is right on every occasion is wrong. Everyone makes mistakes. Anyone who practises either as a solicitor or as a barrister—I have practised as both—knows that he has made mistakes in the past. A mistake may be made by failing to call a witness. The significance of a tiny piece of scientific evidence may not be apparent at the time; one fails to realise its significance. Only later does scientific knowledge highlight the fact that there was more significance to that tiny piece of evidence than was thought at that time.

Judges, counsel, solicitors and witnesses are human and make mistakes. I do not intend to refer to the findings of the May inquiry, but it is so easy to look back 14, 15 or 20 years and be hypercritical of actions taken by human beings at that time. It is more productive to accept that people try to do their job, within the confines of the system, as well as they can but that they are constrained by the knowledge that exists at the time.

The problem with forensic evidence over the years has been the imbalance between the facilities available to the defence and the prosecution. Scientific services are Government services and people's services. They should therefore be available to everyone. However, there comes a time within our system when a feeling of partisanship is suspected. All lawyers are well advised to be aware of that danger. If one feels partisan about a particular incident, one may or may not inadvertently fail to disclose evidence, particularly scientific evidence. One may also Fail to disclose other extraneous factors that in turn become crucial to the testing of the evidence.

If we are to have a court of final referral, which I hope one day we will, I hope that it will not be only for the great and the good. I have always worried about a simple case—a shop burglary 20 years ago. I was convinced at that time and I am to this day that the man convicted of it, on circumstantial, not confessional, evidence, was probably innocent. The problem is that he was given a six-month sentence which has long since been served. He had to serve that sentence and, more importantly, his career was ruined. He wanted to be a professional—it does not matter which profession—but it was no longer open to him.

9.15 pm

A court of final referral is as important to people like that as it is to those accused of major criminal offences or terrorist offences. We have to be equally wary of those cases.

The present system has stood the test of time. We may not always agree with the results we obtain in court—we would not be human if we did—but that does not mean that the system is wrong. I disagree with the attacks made upon the Court of Appeal because experience has shown that in 99.99 per cent. of cases the system is fair and right. As my right hon. and learned Friend the Member for Aberavon (Mr. Morris) said, the system is right.

I agree with our trial system. Mistakes will be made, but, by and large, it is right. We are not saying that the systems are wrong. Those of us who support a court of final referral merely accept the principle that mistakes can be made. Such a concept needs to be thought about carefully, even if it is not in the form suggested in the new clause. It needs to be established because the frontiers of knowledge are for ever extending and, in a just and good system, we have to be able to accept that we can make a mistake.

Mr. Austin Mitchell

I congratulate my hon. Friend the Member for Sunderland, South (Mr. Mullin) on his new clause and on having it selected. I tried to do that in Committee but was unsuccessful because I do not have his legal skills. It is important to discuss this general problem, as my hon. Friend did on Second Reading. I am speaking as a layman—a person passionately concerned about something that appears to be wrong, even rotten, in the state of justice. There is a general feeling that this is a major problem that we cannot deal with. Something has clearly gone wrong, but there seems to be no way out. We must find a way of dealing with it.

It is clear from the Guildford, the Maguire and the Birmingham cases that something has gone drastically wrong with justice. In the atmosphere of that time, it was clear that it would be difficult to get justice and to obtain independent, conscientious police work that was not aimed simply at getting a conviction.

The machinery of justice is not there to bend to such pressure; it is there to ensure that cases are treated fairly. That is the reason that there should be an adequate appeals procedure—so that, if a court has failed in the initial instance, for whatever reasons, the verdict can be looked at again objectively and proper redress provided. In the cases that I mentioned, it is clear that that opportunity did not exist.

We have to do something along the lines suggested by my hon. Friend the Member for Sunderland, South. I am alarmed at the way in which the Court of Appeal seems to feel it incumbent upon itself to back previous decisions, as if a challenge to such a decision and the methods by which it was taken is a challenge to justice itself and the rule of law. It believes that it is somehow defending the system against unjustified, unreasonable and unfair criticism. It does not examine the facts of the case, which is surely its responsibility. It is even more alarming to hear rumours that judges in the Court of Appeal continue to believe, despite all that has been said, that people are guilty. Such rumours are disconcerting.

Mr. Mullin

It is clear, and the Attorney-General may have heard it said, that several senior judges have gone round, as they have done in other cases, saying that the people convicted of the Guildford and Woolwich pub bombings and the Maguire family, whose convictions have been quashed, were guilty but got off on a technicality. That is outrageous. It is completely false.

Mr. Deputy Speaker

Order. We have a long-standing convention that we do not reflect adversely on the courts or the judiciary. The hon. Gentleman is breaking that convention.

Mr. Mullin

With respect, Mr. Deputy Speaker, I have made that point on several occasions without falling foul of the Chair.

Mr. Deputy Speaker

Just because the Chair has been prepared to be tolerant, the hon. Gentleman should not take the opportunity to push that tolerance further.

Mr. Mullin

I accept that observation, Mr. Deputy Speaker.

Mr. Mitchell

If such attitudes have been voiced, they are absolutely wrong and show that justice was not available through that channel. If that is the case, it should arouse the strongest possible concern, as should any implication that if cases are sent back to the Court of Appeal, they are thrown out as a testimony to the virility of the Court of Appeal.

The second problem is the way in which the Court of Appeal seems to regard it as necessary to think itself into the mind of the jury at the original trial and say that, even if certain evidence had been presented at the trial, the jury would have come to its original conclusion. That is an impossible and wrong intellectual feat for the court to perform.

The real threat to justice is the feeling that it has not been done, the feeling that there is no way out or the impression that something that is wrong cannot be dealt with. That is more of a threat to justice than anything that I can imagine.

In its sixth report in 1981–82, the Home Affairs Select Committee, after a thorough inquiry, came to the firm conclusion that there should be a further means of redress along the lines suggested by my hon. Friend the Member for Sunderland, South. I quote with concern the evidence given to it by Sir David Napley, who told the Committee that he was unable to recall from his own experience a single case where the Home Office has, as a result of its own investigations, felt able to recommend a pardon or any other recognition that a conviction was necessarily wrongful. But he said that, on the other hand, on a number of occasions (officials) have quite freely expressed to me their sense of disquiet about particular cases but have pointed out that since appellate courts either on appeal or on reference under Section 17 have refused to interfere with the verdict they felt unable themselves to intervene.

It is a self-reinforced system. That is why we need to cut in with a provision such as that in the new clause. It is apparent that under existing powers, where the Secretary of State refers cases to the Court of Appeal because of doubt about a conviction, the machinery does not work well. It appears that on occasions the Court of Appeal positively resents the exercise of that power. Rather than dealing with the reference in an open-minded fashion, it expresses its resentment in its finding. Therefore, we need an independent review.

I do not think that the Attorney-General will leap to the Box with a glad hosanna and say, "Yes, you are right, it has all been a terrible mistake, and we accept the new clause." I do not think that he will do as I want him to. He is concerned about the reputation and probity of British justice, and the respect for it, not only in this country but in Ireland, and the need to redress the obvious deficiencies that have occurred. If he recommends us to reject the new clause, he must say that the Government are concerned about the issue and that he is looking for a way of dealing with a problem that is detrimental to the interests of justice in this country.

The Attorney-General

I make no complaint that we have spent considerable time on a topic that it would be idle to deny is, at present, a source of much anxiety.

If I deal with the new clause in a way that applies more closely to our proceedings on Report than if we were discussing its content in a different context, I hope that I shall not be accused of wishing to dodge an important debate or playing into the long grass the considerations that have been properly and cogently expressed. I do not agree with all that has been said, as I shall summarily try to make clear. At this stage of the evening, when several right hon. and hon. Members on both sides of the House have given voice to their anxieties and their support for the thinking behind the new clause, it is appropriate for me, in reply, to deal with the matter quickly, and I propose to do so in the way that I have explained.

The Bill does not set out to alter the criminal court structure. To introduce a new clause such as this into the Bill, particularly at this stage, when it has not even been debated in Standing Committee, would be inappropriate. I do not believe that, with hand on heart, hon. Members are seriously suggesting that it can be.

The Home Secretary and I, following the investigation by the police into the Guildford Four's convictions and the subsequent decision of the Court of Appeal in October 1989 to quash their convictions, appointed Sir John May to inquire into the circumstances leading to, and deriving from, those convictions. That inquiry had wide terms. It was also asked to examine the case of the Maguire family and their co-defendants.

The first public hearing began on 21 May, and on 11 July the Home Secretary announced to the House that the Maguire case would be referred to the Court of Appeal. That inquiry's terms of reference were deliberately made wide and the Government confidently expect that Sir John May's report will range widely. He has said that, among the matters that he intends to consider, is whether any changes are needed to the existing arrangements for considering allegations that there have been miscarriages of justice. His interim report was published on 12 July and his final report will receive the most careful consideration.

The right hon. and learned Member for Aberavon (Mr. Morris) rightly distinguished between the function of the Court of Appeal in dealing with a reference to it under the provisions of the Criminal Appeal Act 1968, and the Home Secretary's function in making such a reference, and considering whether or not to make it. That is an important distinction to bear in mind, and it was not very evident in the speech made by the hon. Member for Sunderland, South (Mr. Mullin).

I do not want to be thought to be pre-empting the Government's consideration of whatever Sir John May will recommend. I repeat that I expect his report to range widely, but it would be quite wrong of me to say anything that showed any personal predilection for any recommendation that he may make—or against one.

9.30 pm

The hon. Member for Sunderland, South referred to the judgment given by the Court of Appeal when dealing with the Birmingham Four's reference. He thought it right to call the judgment scandalous. That is unfortunate language. Any court can deal with the matter brought before it only on the basis of the evidence put before it. As the House knows, when the Home Secretary makes a reference, it must be treated under the legislation as a fresh appeal. There has been a tendency to criticise the Court of Appeal in this and other cases for not having dealt with the matter as it might have done had it been in possession of all the material that subsequently became available.

If, when dealing with one of these references, the Court of Appeal took into account material that had not been put before it in evidence, that would indeed be grounds for complaint, and loud complaints would be heard in this House—

Mr. Mullin

Will the right hon. and learned Gentleman give way?

The Attorney-General

I just want to complete this thought. When hon. Members speak, as many have tonight, about courts not owning up to mistakes, they must be clear in their mind what they are talking about. If they are speaking about what is subsequently revealed to have been an irregularity amounting to a miscarriage of justice, but one which has become apparent only by reason of the later disclosure of material that was not available to the court at the time, the court is not shown to have made a mistake.

The court has no investigative powers. Much has been done, no doubt unwittingly, to undermine confidence in the judiciary by people saying that it has not been willing to own up to mistakes, who offer in support of that proposition illustrations of the type that I have described. That should not be done.

Mr. Mullin

I hear what the right hon. and learned Gentleman says. My view—I think that it is shared widely—is that, from the moment the Balcombe street IRA unit was captured in 1976, everyone concerned in the prosecution knew that the wrong people had been convicted. That can easily be shown, and Sir John May may well come to that conclusion.

In the Birmingham case, what went wrong came to light only later, but that was five or six years ago, and by now it should be dawning on people in high places; it has certainly dawned on those of us who travel on buses.

The Attorney-General

The House will know that I certainly cannot comment on the facts of those cases, but I ask the House to bear in mind the functions that the House has conferred on the Home Secretary and on the Court of Appeal. Under section 17 of the 1968 Act, the Home Secretary has power to refer to the Court of Appeal the case of any person who has been convicted on indictment. Alternatively, he may in certain circumstances decide to recommend to Her Majesty the exercise of the royal prerogative of mercy, or he may grant a free pardon. Of course, that is not nearly as satisfactory to those who believe that there has been a miscarriage of justice, because if there has been such a miscarriage, they rightly look to the judicial system to correct it. My right hon. and learned Friend the Home Secretary would not normally consider it right to intervene unless there was new evidence or some other consideration of substance, which had not been before the courts and which appeared to cast doubt on the safety of the conviction.

The right hon. and learned Member for Aberavon said that we needed a tribunal that would take a wider view. He did not identify that wider view, and I find it difficult to see how a view wider than that which the Court of Appeal is required to take can exist. On a reference, the Court of Appeal is required to ask itself whether there is a lurking doubt and whether the conviction is unsafe or unsatisfactory. If there is a doubt, the court must act accordingly. It is difficult to see how we could take a wider view, unless we ask a tribunal to act upon material that is not put before it in the form of evidence. On an appeal there are no holds barred on evidence and fresh evidence can be put before the court.

Mr. John Morris

I sought to put forward as briefly as possible some of the sentiments expressed by Sir John May. On page 36 of his report he comments on the views of the Court of Appeal in that case and on the way in which, in Sir John's judgment, the Court of Appeal erred in upholding the judge's directions, to which I referred. The comments are contained in paragraph 10.1.19. Perhaps I unduly saved the House's time in not referring to them earlier.

The Attorney-General

The House has heard the right hon. and learned Gentleman's comment, and we must leave the matter there.

The anxiety, the existence of which I have acknowledged, derives from cases that were heard about 15 years ago. Since that time, the Police and Criminal Evidence Act 1984 has been put in place and tape recording is almost universal. We also now have an independent prosecution service. Each of those innovations constitutes a significant safeguard against malpractice of the sort that can lead a court to be presented with inadequate or false evidence. We should bear those matters in mind when we think about the reliability of our criminal justice system.

The debate has given rise to some extremely interesting and properly brought forward views. It is not appropriate to use the Bill as a vehicle for such a major constitutional reform and it would not be appropriate to accept the new clause. I hope that the House will agree that the new clause should be rejected.

Mr. Mullin

I am grateful to hon. Members who have supported the new clause, and especially to my right hon. and learned Friend the Member for Aberavon (Mr. Morris). The tone adopted by the Attorney-General in the debate was wholly different from that adopted by the Minister of State, Home Office when he replied to an identical clause two years ago. I propose to press the new clause to a Division.

Question put, That the clause be read a Second time.

The House divided: Ayes 37, Noes 96.

Division No. 315] align="right">[9.39 pm
Barron, Kevin Leighton, Ron
Bermingham, Gerald Livsey, Richard
Brown, Gordon (D'mline E) McKelvey, William
Buckley, George J. McWilliam, John
Callaghan, Jim Madden, Max
Carlile, Alex (Mont'g) Mahon, Mrs Alice
Cook, Frank (Stockton N) Michie, Mrs Ray (Arg'l & Bute)
Dewar, Donald Mitchell, Austin (G't Grimsby)
Dixon, Don Morris, Rt Hon J. (Aberavon)
Eastham, Ken Pike, Peter L.
Farr, Sir John Powell, Ray (Ogmore)
Fearn, Ronald Skinner, Dennis
Fraser, John Steel, Rt Hon Sir David
Golding, Mrs Llin Temple-Morris, Peter
Gordon, Mildred Vaz, Keith
Haynes, Frank Wise, Mrs Audrey
Howarth, George (Knowsley N)
Howells, Geraint Tellers for the Ayes:
Hughes, John (Coventry NE) Mr. Chris Mullin and
Janner, Greville Mr. Bob Cryer.
Jones, Barry (Alyn & Deeside)
Alexander, Richard Blackburn, Dr John G.
Arnold, Jacques (Gravesham) Boswell, Tim
Atkins, Robert Bowden, Gerald (Dulwich)
Baker, Nicholas (Dorset N) Braine, Rt Hon Sir Bernard
Beaumont-Dark, Anthony Bright, Graham
Bennett, Nicholas (Pembroke) Brown, Michael (Brigg & Cl't's)
Bevan, David Gilroy Burt, Alistair
Butler, Chris Maclean, David
Carlisle, Kenneth (Lincoln) McLoughlin, Patrick
Cash, William Mans, Keith
Chapman, Sydney Mayhew, Rt Hon Sir Patrick
Clark, Dr Michael (Rochford) Mills, Iain
Davies, Q. (Stamf'd & Spald'g) Mitchell, Sir David
Davis, David (Boothferry) Morrison, Rt Hon P (Chester)
Day, Stephen Moss, Malcolm
Durant, Tony Neubert, Michael
Dykes, Hugh Nicholson, David (Taunton)
Fallon, Michael Norris, Steve
Favell, Tony Patnick, Irvine
Fenner, Dame Peggy Pattie, Rt Hon Sir Geoffrey
Forman, Nigel Redwood, John
Forth, Eric Rhodes James, Robert
Franks, Cecil Riddick, Graham
Freeman, Roger Shephard, Mrs G. (Norfolk SW)
French, Douglas Skeet, Sir Trevor
Gill, Christopher Smith, Tim (Beaconsfield)
Goodhart, Sir Philip Stern, Michael
Goodlad, Alastair Sumberg, David
Gorman, Mrs Teresa Taylor, Ian (Esher)
Greenway, John (Ryedale) Taylor, Teddy (S'end E)
Griffiths, Peter (Portsmouth N) Tebbit, Rt Hon Norman
Ground, Patrick Thompson, D. (Calder Valley)
Hague, William Thompson, Patrick (Norwich N)
Hamilton, Neil (Tatton) Thorne, Neil
Harris, David Thurnham, Peter
Howell, Ralph (North Norfolk) Trippier, David
Hunt, David (Wirral W) Viggers, Peter
Irvine, Michael Waller, Gary
Jack, Michael Wells, Bowen
Jopling, Rt Hon Michael Wheeler, Sir John
King, Rt Hon Tom (Bridgwater) Widdecombe, Ann
Kirkhope, Timothy Winterton, Mrs Ann
Knapman, Roger Winterton, Nicholas
Knight, Greg (Derby North) Wood, Timothy
Knowles, Michael Woodcock, Dr. Mike
Lang, Ian Young, Sir George (Acton)
Lester, Jim (Broxtowe)
Lightbown, David Tellers for the Noes:
Lyell, Rt Hon Sir Nicholas Mr. John M. Taylor and
MacKay, Andrew (E Berkshire) Mr. Tom Sackville.

Question accordingly negatived.

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