HC Deb 26 April 1995 vol 258 cc932-8
Mr. Trimble

I beg to move amendment No. 14, in page 2, line 38, at end insert— 'For the purposes of this section "unsafe" means, where in the light of representations made to the court and of all the circumstances, it is not satisfied—

  1. (i) that the appellant is guilty of the offence; or
  2. (ii) that a reasonable jury would have convicted the appellant if the trial had, in all respects, been conducted properly.'.

Madam Deputy Speaker

With this, it will be convenient to discuss also amendment No. 15, in line 45, at end insert— 'For the purposes of this section "unsafe" means, where in the light of representations made to the court and of all the circumstances, it is not satisfied—

  1. (i) that the appellant is guilty of the offence; or
  2. (ii) that a reasonable jury would have convicted the appellant if the trial had, in all respects, been conducted properly.'.

Mr. Trimble

With these amendments, we come to ground on which touched on Second Reading and in Committee, although we did not have the opportunity in Committee to consider this particular measure. However, hon. Members familiar with the debate will recognise the source of the amendments in that they are drawn from the valuable and useful article by Sir John Smith, which was kindly made available to us and relied on not only by me but by members of the Labour Front Bench and the Government at various stages in the debate. It cannot be often that a draft academic article, supplied largely through the hon. and learned Member for Burton (Sir I. Lawrence), is quoted from so copiously in debates.

It was towards the end of Sir John Smith's article that he put forward the suggested definition of the word "unsafe". It will be of value if that definition is included in the legislation. A significant feature of the legislation is that it replaces as the ground for referring cases to the Court of Appeal the simple concept that the conviction may be unsafe.

Justice, in its briefing notes for this stage of the Bill, commenting on this subject, says: A great deal will hinge on judicial interpretation of a single word, namely, unsafe. It goes on: The traditional practice already varies between the two jurisdictions of Northern Ireland and England and Wales. That is indeed the case. There is such a variation in practice.

Justice argues: There are significant differences of interpretation within each of those jurisdictions between different judges, particularly at the critical leave to appeal stage which is decided by a single judge on the papers, particularly on such matters as lawyers' errors. We therefore continue to argue for the legislation to signal clearly that what is required of judges is doubt as to the safety of a conviction, not certainty as to its unsafety. That is to some extent what the amendments hope to do by inserting into the relevant legislation definitions of that single word "unsafe". At present, everything will hinge on its judicial interpretation.

There has been, as hon. Members have said, a sea change in the approach of the Court of Appeal, or some members of it in England and Wales. In Committee, the Minister said that it was the intention to consolidate that new broader approach. That is fine if the word "unsafe" is consistently given that broader interpretation. However, there is a danger that that will not happen. It is not safe in the present situation simply to rely on the assurances of some members of the judiciary, no matter how senior they may be, that the word will be given a broad interpretation.

We cannot be sure that that will be done in all cases and, speaking as a Member from Northern Ireland, I cannot be sure that the same broad interpretation will be given by the courts in Northern Ireland, particularly when the background is that the courts in Northern Ireland have not seemed to have had as thoroughgoing a sea change as the Court of Appeal in England and Wales.

It is for that reason that it is desirable to spell out in a little more detail the definition of "unsafe". That Sir John Smith did in terms that I am happy to adopt and put forward for the consideration of the House. That will help to send to the courts the clear signal that we are expecting, in the operation of the legislation, to see underwritten and, if necessary extended, the different broader approach which has been adopted in some of the more recent English cases. We hope that it is consolidated and whole-heartedly adopted in Northern Ireland.

Sir Ivan Lawrence (Burton)

The Bill's purpose is to provide an effective and speedy system for correcting miscarriages of justice. One limb of the Bill, at clause 2, requires the Court of Appeal to allow an appeal if it thinks that the conviction is unsafe.

At the prompting of the eminent academic, Professor Sir John Smith QC, whose reputation in the field is accepted by the Court of Appeal and senior judges, I raised a number of issues on Second Reading which, on the face of it, challenge the use of the word "unsafe". I circulated to hon. Members on both sides of the House, as the hon. Member for Upper Bann (Mr. Trimble) said, the professor's draft article, which also raised other issues of possible confusion.

The suggested amendment to the Bill proposed by Professor Sir John Smith has formed the amendment now proposed. However, the draft article was written in response to the Runciman royal commission's analysis of the situation, before the publication of the Bill and before our Second Reading debate. As a result of the publication of the Bill and of hearing the Second Reading speeches, Sir John has updated his version of the article and, having seen clause 4, he has added the words "of any fresh evidence" to his suggested definition of "unsafe". It now reads: A conviction is unsafe where, in the light of representations made to the Court, of any fresh evidence, and of all the circumstances, it is not satisfied—

  1. (i) that the appellant is guilty of the offence;
  2. (ii) that a reasonable jury would have convicted the appellant if the trial had been properly conducted in all respects."
That addition, however, is but a detail.

What is more than a detail is what Sir John says about the substitution of the words "capable of belief" in clause 4 for "likely to be credible", the purpose of which is apparently to lower the high test of "likely to be credible" before fresh evidence is admitted under section 23 of the Criminal Appeal Act 1968 to the lower test of "capable of belief", and thus to allow evidence to be admitted that might be excluded under the existing test. Sir John said in his article, although in much more elegant language, that as "credible" means "believable", according to the Shorter Oxford Dictionary, the distinction intended to be drawn is utter nonsense.

Furthermore, Sir John says that although one can say, if one is the Court of Appeal, that some fresh evidence is "likely to be credible" before one hears it, one cannot say that it is in fact credible until it has been given and cross-examined, which would have to be after the Court of Appeal is expected to make its decision to admit it. That shows that the great academics will go on arguing about any definition that we arrive at in this place to explain further the word "unsafe".

I am caught on the horns of a dilemma on the amendment. Although I understand the point of defining "unsafe", and of making it statutory and, therefore, binding on future courts of appeal, it is obvious that definitions will not be agreed so easily. If the word is defined, I foresee long years of argument in the Court of Appeal. The Society of Conservative Lawyers wanted "lurking doubt" made statutory because the Court of Appeal did not always follow the line laid down in the early cases of Cooper and others on that phrase.

I have no doubt that my hon. Friend the Minister will respond by saying that the Lord Chief Justice is content that "unsafe" would be clear, just and comprehensible, and would enable the Court of Appeal to quash a conviction on both evidential and procedural grounds. I am not sure whether that means that, in certain cases, inadmissible evidence will be allowed to render the verdict unsafe. Apparently, we must await the Law Commission's report on the rules of evidence before that decision is reached.

Of course, a problem exists about allowing the Court of Appeal to admit evidence that is inadmissible at the trial. There is something faintly absurd about allowing evidence to be admitted in one court and not in another. Equally, there is a problem, if one wants to avoid miscarriages of justice, about allowing a person to remain convicted of crime where evidence exists of his innocence that cannot be admitted because it is hearsay, however powerful that evidence may be.

The summary of Sir John's amended article says that the problem which will arise if the Criminal Cases Review Commission finds convictions to be unsafe on grounds which are inadmissible in evidence is more serious than has been recognised; and that the only satisfactory way to deal with the matter is to admit at the trial, subject to safeguards, any evidence, the exclusion of which might render a conviction unsafe.

Mr. Donald Anderson

I assume that the hon. and learned Gentleman is aware that the Law Commission is studying that point in relation to the hearsay rule, and hopes to produce its conclusions, I believe, by the summer.

Sir Ivan Lawrence

That is why I said that, apparently, we must wait for that report before the Government are minded to take any further steps.

I am driven reluctantly to conclude that the word "unsafe" undefined is as likely, because of its simplicity, to avoid a miscarriage of justice as any definition that will be argued over by academics and judges in the Court of Appeal, indefinitely, at great cost to the criminal justice system.

The Select Committee on Home Affairs recently heard evidence from Mr. Justice Brooke, who is the distinguished chairman of the Law Commission. He says that, as an argument for codifying the criminal law, an assessment is needed of the cost of uncertain law. The permanent secretary to the Lord Chancellor's Department told the Home Affairs Select Committee not many minutes ago that he would try to assess the costs to the system of convicting people who are subsequently considered by the Court of Appeal, interpreting the meaning of words, to have been innocent in law and acquitting them—costs that will obviously turn out to be substantial to the system.

The only question in my mind is whether a future Lord Chief Justice, unfettered by a statutory definition, would adopt the same attitude as the present incumbent, who is apparently saying, "Unsafe is okay for us. The Court of Appeal will take into consideration matters of procedure and of evidence, and we need no further definitions."

This is probably a case for guidelines. But, whichever way we decide on the amendments, thankfully, there is no prospect of the work of the criminal Bar being concluded. I only hope that the resource pool from which legal aid fees are drawn never dries up.

8.45 pm
Mr. Donald Anderson

I thank the hon. and learned Member for Burton (Sir I. Lawrence) not only for distributing copies of the famous draft article to all relevant hon. Members, which formed the basis for discussions in Committee, but for again acting as the middleman and intermediary between Professor Sir John Smith and the House. It can hardly be satisfactory that we need such a middleman. The Bill is essentially non-partisan and cries out for consensus, and for the House to get it as right as it reasonably can, in the knowledge that such Bills come before the House only once in a generation.

Surely, rather than having an expert middleman like the hon. and learned Gentleman, on reflection this should have been a matter for a Special Standing Committee, which he, as the Chairman of the relevant Select Committee, would have chaired. It is sad that, since the inception of that new Special Standing Committee procedure in 1980, and the first flush of Special Standing Committees in the 1980–81 Session, when three Bills—the Criminal Attempts Bill, the Deep Sea Mining (Temporary Provisions) Bill and Education Bill—were discussed in that way, only three Bills have gone through that procedure. In the past 10 years, only one Bill has gone through it.

Such a procedure was set up precisely for Bills of this sort. We could well have had four such sittings prior to the Standing Committee. We could have called before the Special Standing Committee relevant practitioners and academics of the stature of Sir John Smith. As a result, we would probably have emerged, not with a higher standard of confusion about the various formulae that have been adopted but with a much clearer understanding, which would have been more likely to stand the test of time. That said, I believe that an opportunity was missed. I hope that hon. Members will be alert to the existence of the Special Standing Committee procedure and will be more ready to adopt it.

The amendments seek the objective that we sought in Committee—the definition of "unsafe" or "unsatisfactory". I accept the point that, whatever the phrase used, it is capable of widely varying interpretations depending on the tribunal that considers it. There will be no finality, because the composition of the Court of Appeal may change. Although we are told that the current formulation reflects the practice of the current Court of Appeal, we know that, just as the prevailing climate of the Court of Appeal has altered markedly over the past few years, the position could alter in future. All that the House can do, therefore, modestly recognising that there can be no finality, is to give as strong a signal as possible to the judges about our views.

I hoped that the formulation that came from the royal commission, which was accepted by the Law Society and the Bar Council, would be acceptable. It proved not to be acceptable to the Government, and they may rue that. They have said that there were wide consultations on the matter, but we are rather puzzled about that. The starting point was the royal commission and all the published evidence was in one direction. The Government talk about wide consultation, yet they have come to a view that is contrary to all the known published evidence. On the face of it, that is anti-democratic; it does not enhance the quality of debate. I repeat the point about the case for a Special Standing Committee.

The hon. Member for Upper Bann (Mr. Trimble) has taken the initiative of adopting the suggestion of Professor Sir John Smith. We need inter alia to give a signal and some guidance, especially if we wish to make the test less restrictive than the old test.

In the helpful clarification given to the Committee, which is now relevant because of the Pepper v. Hart case, the Minister helpfully said: We do not intend the test to result in fewer convictions being overturned than at present, or to narrow the grounds for allowing an appeal … I repeat what I said to make it absolutely clear: the intention is to consolidate the existing practice of the Court of Appeal and to provide as simple and clear a test as possible … The test that we propose fully allows a conviction to be quashed on a lurking doubt. The appellant does not have to prove that a conviction is unsafe; the court merely has to think that a conviction is unsafe. It would be hard to enact the lurking doubt test more explicitly."—[Official Report, Standing Committee B, 21 March 1995; c. 25.] Those remarks will be relevant; they will be read and acted on by the Court of Appeal following the Pepper v. Hart principle. If the Government are prepared to agree that the formulation accepts the lurking doubt principle, why do they not say so explicitly? What is the mischief in accepting an amendment that would put the matter clearly in statute?

Our judgment is that we need a clearer definition for the formula. It may well be that the formula set out by Professor Sir John Smith is not wholly adequate. I hope, however, that the Government will consider the matter and come forward with a considered view. I hope that the current test of "unsafe", which is not defined and which is certainly not approved by all those whose evidence we have read, will be seen by the Minister to be insufficient. We need to give a clearer signal. We would certainly be ready to support the formulation of Professor Sir John Smith, as set out in the amendment.

Mr. Nicholas Baker

Although I cannot accept everything that the hon. Member for Swansea, East (Mr. Anderson) has said, I take his point about consensus. I do not think that, except in a very technical sense, this is a matter for a Special Standing Committee. The hon. Gentleman is, of course, right in saying that we are giving our view to the judges. I am glad that he read out my own words which I cannot oppose. They and all our words will be read and used.

We had consultation, about which the hon. Member for Swansea, East asked. It was not, however, the case that everyone came to the same view. We came to the view that it was right to follow the royal commission in replacing the current three overlapping grounds of appeal with a single broad ground of appeal. The amendment would replace that single ground with two grounds. The hon. Member for Upper Bann (Mr. Trimble) has most helpfully and usefully tabled the amendment, but I see difficulties with the definition. It is possible that some of the words are restrictive. The words "a reasonable jury" invite difficulties which throw me back, as we were thrown back following the earlier consultation, on the rightness of having a single test.

In a brilliant speech, my hon. and learned Friend the Member for Burton (Sir I. Lawrence) has explained to us, using all his background, how academic views can change and how the discussion will go on. He raised the point about inadmissible evidence. We felt that it was necessary to preserve the option of a pardon in cases that could not be considered because of inadmissible evidence. My hon. and learned Friend is right to say that we shall wait for and carefully look at the Law Commission's report.

I come back to the approval given by the Lord Chief Justice, which I mentioned in Committee, for one test—the test of "unsafe". It is clear, just and comprehensible. My hon. and learned Friend the Member for Burton left out the next words, which will appeal to the hon. Member for Islington, North (Mr. Corbyn) as they appeal to me. The Lord Chief Justice added the words "to the ordinary citizen." If we want the system to be transparent and if we want everyone to feel that the commission is available to them, we want, as far as possible, language that the ordinary citizen can understand. I believe that the test will stand. It will, of course, depend on the judges' interpretation. It is a broad definition and I believe that we are right to stick to one test. For those reasons, I cannot accept the amendments.

Mr. Trimble

I very much regret the line that the Minister has taken. To some extent, he misunderstands the position. We do not seek through the amendments to change the test; the test will be set out as "unsafe". We do not propose to alter the single ground—whether the court thinks that the conviction is "unsafe". The amendments are an attempt to spell out in a little way the meaning of "unsafe" and to suggest the broad range of things that can go to make up the definition of "unsafe".

The hon. and learned Member for Burton (Sir I. Lawrence) referred to the possibility that people will argue as to what the definition of the clause and the terms in it mean and how academics may still argue about things and change their views from time to time. Well, judges may do exactly that as well.

For many years, there have been grounds on which the Court of Appeal could overturn convictions and we have seen how the approach of the Court of Appeal has varied. We are delighted to see how in recent years the approach of the Court of Appeal in England has been broader. In Committee, the Minister said that the single word "unsafe" was intended to consolidate that approach by the Court of Appeal, by which I take it that he is referring to the recent, more liberal interpretation by the Court of Appeal in England. That shows how there has been a difference in approach.

The definition is to enable us to find a way in which to signal clearly to the judges—not only to the present Lord Chief Justice, who is apparently ready to take a good, broad, liberal view, but to all the judges, all the future judges and all the judges in Northern Ireland as well as those in England—that we want to underwrite and clarify the new, broader approach developed in some recent cases by the Court of Appeal.

I agree with the points made by the hon. and learned Member for Burton about inadmissible evidence. That issue must be tackled. I do not see that it is relevant to these amendments or would be a ground for turning them down. None the less, although I am not especially happy with the line that the Minister has taken—I do not think that it is particularly coherent—I do not wish to delay the proceedings. I am sure that the matter will be considered again in another place. I trust that, by then, the Government will have a slightly broader and more liberal approach. In the light of that and with that hope, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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