PRESERVATION OF MATERIAL EVIDENCE (Hansard, 26 April 1995)

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

§ Madam Deputy Speaker
With this, it will be convenient to discuss also the following: Government amendments Nos. 32 and 33.

§ Mr. Michael
The aim of the new clause is to ensure that evidence following a criminal conviction on indictment can be preserved so as to be available to the commission when it undertakes any relevant inquiries. It carefully proposes the means to ensure that that power exists and that there is accountability for its exercise, under regulations.
The Government amendments grouped with the new clause follow undertakings given in Committee on behalf of the Government to consider this need to preserve evidence. Indeed, we had a helpful debate in Committee. The Minister considered the amendments that we tabled and undertook to return to the matter on Report. He agreed that we had made serious points in respect of the preservation of evidence, but was not sure that our amendments were strictly necessary.
We have sought to deal with the matter in a constructive new clause that would leave the detail to regulations to be laid by the Home Secretary and considered by the House. We thought that that offered the necessary flexibility.
In Committee, the Minister accepted the necessity of preserving evidence, and the Government amendments demonstrate that too. The question remains whether the Government's amendments go far enough, or whether their phraseology is too limiting. They are of course permissive amendments; I hope that the Minister will clarify exactly how he intends to limit the capability to preserve materials; and that he will tell us why he is confident that the amendments, not the new clause, will deal with all the circumstances for which we have sought to empower the Home Secretary.
It is most important that there should be no gap through which various materials might fall. There may be a time between a growing apprehension that there may have been a miscarriage of justice and the point when formal action begins. During that period, evidence could be removed or lost through no fault of an individual. Such evidence has often mysteriously disappeared as soon as it has become clear that there is likely to be a full investigation.
It is most important that any legal requirement and regulations be effective in ensuring that such things cannot go on—or at least that their incidence is limited.
I hope that the Minister will be able to reassure us on these points. I welcome the fact that Ministers have followed through their undertakings in Committee to take seriously the points that we raised there, and the fact that they, like us, have produced suggestions that we can debate on the Floor of the House this evening.

§ Mr. Maclean
Like the hon. Member for Cardiff, South and Penarth (Mr. Michael), I recognise the necessity of 925 ensuring that investigations made by or on behalf of the commission are not hampered by the destruction or alteration of what may be crucial documents or other material. It is right that the commission should be able to direct that papers, and so forth, should not be destroyed or altered during the course of an investigation by the commission.
I am grateful to the hon. Gentleman and his hon. Friends for raising the subject in Committee. That gave us the opportunity to look at the wording of the Bill, to ensure that the powers involved were adequate. We thought that clause 16 granted the commission fairly strong powers to ensure that all documents were retained; but following our debate in Committee I agreed to look again at whether the commission could or should be given powers to direct that documents or other material held by a public body should not be damaged, altered or destroyed while the commission was considering the case to which they related.
We concluded that it would be wise to table the amendments in this group. They enable the commission to direct the appropriate person of any public body that the documents or other material held by him in relation to any case should not be damaged, destroyed or altered until the direction is withdrawn.
As to the wider question of whether we need broad regulation-making powers of the sort envisaged in the new clause, I am not persuaded. As I said in Committee, we need a more consistent approach to retention periods than we have now; that goes for all documents in Government and police circles. As many hon. Members already know, work is under way with a view to developing such an approach. Discussions are taking place with the police service, the Forensic Science Service, the CPS and others whose papers and/or other material may be of assistance to the commission and to others in the performance of their respective functions. We hope that those discussions will result in far greater standardisation of retention periods. Legislation may not be needed to achieve that—perhaps a code of practice or a set of guidelines will ultimately suffice. It may turn out that there is a need for legislation, but I doubt it.
The Government consider it best to look to the work that I have described to achieve what we all want: greater consistency governing the retention periods for documents and other material. We should not try to legislate separately and in detail. New clause 16 is a genuine attempt to draw attention to a problem. I acknowledge that clause 16 could have been better worded, so we tabled the amendments to plug a loophole. I hope that the hon. Gentleman finds that satisfactory. However, I do not want detailed regulations to cover the commissions's work. We want a wider solution—

§ Mr. Michael
I acknowledge that the Government amendments deal with the situation once the commission is aware of the possibility that it might need to investigate a case. What I am worried about, however, is that it may become clear that a case will be referred to the commission, but until that case reaches the commission, it will not be in a position to make a relevant order.
We did not seek to set out detailed requirements; we tried to leave it to the Secretary of State to come up with regulations to plug any gap. Does the Minister not feel 926 that there may still be some gaps in the necessary powers attaching to the Home Secretary, and that the new clause would allow him to lay the necessary regulations?

§ Mr. Maclean
No. The gap, such as it may be, is in the power of retention generally. The hon. Gentleman says that there might be a case which it becomes clear will go to the commission, but there might be many other cases where no one suspects that there might be an alleged miscarriage of justice and where there is no prospect at an early stage of the case going to the commission.
Unless we have proper rules to keep relevant papers for three, seven, 10 or 20 years, they will automatically or routinely be destroyed in all innocence—by the police after a given period or by the Crown Prosecution Service or someone else—because it could be many years before a miscarriage of justice is alleged. To deal with such cases, we need general and sensible retention rules throughout the whole criminal justice system so that we are not legislating only for those cases in which we can spot a mile away that there might one day be the allegation of a miscarriage of justice. We therefore intend to hold all relevant papers for a sensible period, and I think that the Government's proposals will make for a wider and more sensible solution across all Departments.
For those reasons, I do not accept the detailed new clause. I am, however, grateful to the hon. Gentleman for raising the subject in Committee, as that enabled us to have a further look—that is how Committees should work sensitively and constructively—and to table Government amendments Nos. 32 and 33. I am grateful to the hon. Gentleman for his wise words but I hope that he will not press the new clause to a Division.

§ Mr. Michael
I am grateful to the Minister for the way in which he has spoken to the new clause and the Government amendments. I was pleased to hear more about the intention to introduce requirements for the general retention of papers. I acknowledge that that would deal with the generality of cases, including those which may be caught by the provisions of new clause 16 relating to the potential work of the commission. However, it seems that a small gap is left.
New clause 16 would provide a wider power than is relevant to the commission's work, as the Minister rightly said, but the use of that power could be limited to cases that were relevant to the commission's work. If the Government amendments are accepted but the new clause is not, there will still be a slight gap in the Bill's provisions. However, it seems sensible that the Government's amendments should be passed with our support and that the remaining gap should be a matter for further discussion in another place.
I hope that the Minister will acknowledge my point that there might be a need for some regulation to allow defence solicitors or the commission to flag up something that has not formally come to their notice but seems likely to do so. In such circumstances, it would be appropriate for the preservation of papers and other evidence to be guaranteed, even in advance of the general powers that the Minister says will be introduced in due course. Perhaps another amendment could fill the gap between us.
I am sure that the Minister accepts that there are difficulties, and I understand that new clause 16 perhaps ranges wider than would be appropriate in a measure that deals specifically with the responsibilities of the 927 commission. For that reason, I indicate my support and that of my colleagues for the Government amendments, and beg to ask leave to withdraw the motion.