§ Order for Second Reading read.3.35 pm
§ The Secretary of State for the Home Department (Mr. Michael Howard)
I beg to move, That the Bill be now read a Second time.
As the whole House will agree, any miscarriage of justice is a serious matter, not only for the person wrongly convicted, but for all of us, because it affects public confidence in the criminal justice system. We share a common interest in ensuring that our system is the best we can provide, that it contains all the necessary safeguards to minimise the possibility of a wrongful conviction, the most effective appeals procedures that we can devise, and the best machinery for investigating possible miscarriages of justice.
We have done a great deal in recent years to improve the operation of the criminal justice system. Measures range from the Police and Criminal Evidence Act 1984 to the Criminal Justice and Public Order Act 1994, from the tape recording of interviews with suspects to the establishment of the first comprehensive national DNA database anywhere in the world, and from improvements in police training to the great strides made in forensic science. Major advances have been made in the fight against crime and in protecting the public.
The Bill represents the next step. It will create the new and independent arrangements for identifying possible miscarriages of justice, and it will reinforce and extend the powers of the courts in criminal appeals. In so doing, it implements some of the key recommendations made by the Royal Commission on criminal justice in July 1993.
My current powers to refer cases to the Court of Appeal as a last resort have been in place since the turn of the century. They have served us well in the past, but there is now universal agreement that a fresh approach is needed. In particular, we need a new investigative body that is constitutionally separate from, and visibly independent of, both Government and the courts. We also need to clarify and strengthen the powers of the Court of Appeal to identify and resolve doubtful cases at the earliest opportunity. The Bill fulfils those aims.
I make no apology for refusing to rush into legislation. The Bill contains the most significant changes to the structure of our criminal appeals system for almost 30 years. My right hon. and learned Friend the Secretary of State for Northern Ireland and I thought it right and necessary to consult in detail about our proposals, and we have benefited greatly from the opinions and advice of many who work in the criminal justice system and beyond.
The Bill is in three main parts. Part I clarifies and strengthens the powers of the respective courts of appeal in England and Wales and in Northern Ireland. Part II establishes the new criminal cases review commission. The two parts are, of course, closely linked. Part III extends the powers of magistrates courts to reopen cases to rectify mistakes.
The commission will examine cases in England, Wales and Northern Ireland and decide whether to refer them to the courts in the respective jurisdictions. It will be 24 independent, accessible and open. It will have strong investigative powers, and it will be well resourced. Between them, its members will bring to bear a wide range of qualifications and experience. They will need all those, because the task that they face is difficult and complex.
§ Mr. Andrew F. Bennett (Denton and Reddish)
What is the Home Secretary's most up-to-date assessment of the number of cases that the new body will deal with in the first year? Will he confirm that it will not balk at any conviction as long as the person concerned is still alive?
§ Mr. Howard
It will have to take into account the criteria that are set out in the Bill. As I shall shortly say, we have made an assumption about the number of cases that the new body will deal with in its first year. If the hon. Gentleman will be patient I shall explain precisely what the assumption is.
The final decision on any case which is referred will rest either with the relevant Court of Appeal—if the case was tried originally on indictment—or with the Crown court, or the county court in Northern Ireland, following a referral in a summary case. The courts will therefore continue to be responsible for determining all appeals whether made to them direct or on referral by the commission. That is the right approach; matters of guilt and innocence are properly for the courts to determine.
I come now to the detail of the Bill. All the provisions in part I either respond to the recommendations of the royal commission or else improve the operation of the Court of Appeal in other ways.
The Bill places appeals against conviction on a point of law on the same footing as other appeals against conviction and sentence. Leave to appeal will be required in such cases except where the trial judge has certified the case as fit for appeal. That will provide a filter mechanism for appeals on a ground of law which are obviously without merit.
The Bill clarifies the grounds for allowing and dismissing an appeal. The present formula involves three overlapping grounds and is widely felt to cause confusion. Under the Bill, the Court of Appeal will allow any appeal where it considers the conviction unsafe and will dismiss it in any other case. That simple test clarifies the terms of the existing law. In substance, it restates the existing practice of the Court of Appeal and I am pleased to note that the Lord Chief Justice has already welcomed it.
§ Mr. Jack Straw (Blackburn)
As the Home Secretary will know, the royal commission suggested a rather different test—that the conviction should be set aside if it is or may be unsafe. The test in the Bill is that it is unsafe. It appears to Justice and others that that may be a much more narrow and restrictive test than the royal commission had in mind. Will the right hon. and learned Gentleman give the House his observations on that?
§ Mr. Howard
The test in the Bill is the result of our consideration of the matter in the light of the consultation exercise. It is a simple test, a straightforward test and, I believe, an easily understandable test. As I said, the Lord Chief Justice has already welcomed it. That is why we have opted for the test in the Bill. I have no doubt that the hon. Gentleman's point will be the subject of detailed consideration in Standing Committee. 25 The Bill also lowers the threshold for the admission of fresh evidence by the Court of Appeal along the lines recommended by the royal commission, and provides a means of beginning or continuing an appeal on behalf of a person who has died.
The respective Courts of Appeal in England and Wales and Northern Ireland will also be able to direct the new commission to investigate certain matters relating to an appeal before the court and to report their findings to the court. I think that that power will rarely be needed, but it is there for the exceptional case and it is an important addition to the court's powers to remedy wrongful convictions.
Part II of the Bill establishes the criminal cases review commission with powers to investigate possible miscarriages of justice and refer appropriate cases back to the courts. It will he able to refer a case on grounds of conviction or sentence or both, as I may already do at present; and it will be possible for the first time to make referrals in summary cases.
The commission will be independent both of the Government and the courts, with members appointed by Her Majesty the Queen on the recommendation of the Prime Minister. There will be a chairman and a minimum of 10 other members. At least one third of the members at any one time will he legally qualified and at least two thirds will have relevant experience of the criminal justice system. All appointments will be made on the basis of the particular experience, expertise and other abilities that the applicant will bring to the work in hand.
All the posts on the board of the commission, including that of chairman, will be advertised publicly. We want the best candidates for the job and we think that this is the best means of ensuring that.
We have provided sufficient resources to enable the commission to deal with its expected case load as swiftly and effectively as possible. We have assumed that it may receive, at least initially, at least twice as many representations as come to the Home Office and the Northern Ireland Office at present. The commission will need to employ up to 60 staff, which is about three times the number currently engaged in such work within my Department and the Northern Ireland Office. Although the recruitment of its staff will be a matter for the commission, we expect that its staff will reflect the broad mix of legal, investigative and administrative skills and experience needed to do work of this sort. As with the posts of the members, those of the commission's staff will be filled by open competition following advertisement.
As Home Secretary, I will remain responsible for the law under which the commission will operate, but I will take no part in its day-to-day decisions and administration—those will be matters for the commission. The Bill does require the commission to keep proper accounts and to submit an annual report to me. I will lay that before Parliament. The accounts will also he laid before the House following their audit by the Comptroller and Auditor General.
At present, the only means at my disposal and at the disposal of my right hon. and learned Friend the Secretary of State for Northern Ireland for correcting a miscarriage of justice in a summary case is to recommend to Her Majesty that she grant a free pardon under the royal prerogative of mercy. But although a free pardon removes the effect of the punishment, it is clearly unsatisfactory that it does not quash or reverse the conviction. That is 26 something that only the courts can do. The Bill therefore provides for the first time for summary convictions, following investigation, to be referred to the Crown court in England and Wales and to the county courts in Northern Ireland respectively.
Most miscarriages in summary cases are straightforward. They do not require detailed investigation of the sort that the commission will undertake before referring any case to the courts. The Bill therefore provides a simpler remedy for the straightforward case. It extends the existing powers of magistrates courts in England and Wales to reopen cases to rectify earlier errors where that would be in the interests of justice, irrespective of the plea entered at trial. The Bill makes comparable provision for Northern Ireland. That is an entirely new power for the Province.
In view of the changes that will be made as a result of the Bill, we have also considered whether the royal prerogative of mercy should continue to be available in conviction cases. Like the royal commission, we have concluded that it will still be needed for the very exceptional case—but only the very exceptional case. For example, it will still be needed where there is new evidence which, for some reason, is inadmissible.
The decision as to whether I should recommend the exercise of the prerogative in relation to any conviction usually necessitates some investigation of the facts of the case. The Bill therefore gives me and my right hon. and learned Friend the Secretary of State for Northern Ireland power to refer any matters requiring investigation to the commission. That will ensure that any inquiries needed will be undertaken by a body empowered and resourced to consider possible miscarriages of justice.
It is vital to the success of the new arrangements that Ministers are not seen as an alternative to the commission or as a court of appeal from its decisions. The new power enables Ministers, in reaching a decision on the exercise of the prerogative in relation to a conviction, to rely on the results of any investigations already undertaken by the commission and, where inquiries may be needed, to ensure that the commission has the opportunity to fulfil its proper function, thus obviating the need for any separate investigations to be carried out under the auspices of Ministers.
The Bill gives the commission all the powers that it needs to carry out its investigations effectively and thoroughly.
§ Mr. Howard
If the hon. Gentleman will restrain himself for a moment, he will find that I am about to deal with the points that I anticipate he is going to raise.
The commission will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf, in accordance with its directions and, if necessary, under its supervision; it will be able to require the appointment of an investigating officer from a different police force from that which investigated the crime originally; it will be able to insist that it approves the choice of the officer appointed before an investigation takes place; it will be able to commission its own expert opinions and tests; and it will have power to obtain access to documents held by police forces and other bodies. 27 The commission will also be able to obtain relevant papers and other material held by me and by my right hon. and learned Friend the Secretary of State for Northern Ireland as a consequence of our having considered possible miscarriages of justice cases under our existing powers. It is clear from this that the commission will initiate and take responsibility for any investigations undertaken on its behalf by the police and other public bodies.
We believe that, in the majority of cases, the commission must have access to the knowledge, expertise and other resources of the police. Indeed, we think we would be doing the cause of justice a gross disservice if we denied the commission access to the wealth of expertise available in police forces. I am aware of the concerns expressed on this point by the hon. Member for Sunderland, South (Mr. Mullin).
§ Mr. Howard
If the hon. Gentleman will forgive me, I shall continue for a moment.
The hon. Gentleman believes that the use of the police in the manner that I have proposed is a fatal flaw in the new arrangements. He says that it flies in the face of almost all the advice that I have received. I pay tribute to the hon. Gentleman's work over the years as a standard bearer for the cause of those who have been wrongly convicted, but I must take issue with him on this point.
The Government's proposals do not run counter to all the received advice—far from it. They are in line with the royal commission's recommendations. Indeed, the royal commission concluded that there was "no practicable alternative" to the commission using the police, given
the size and scope of the inquiriesneeded in miscarriage cases. Most of those who have responded to our consultation papers on this point, including Viscount Runciman, the chairman of the royal commission, the Police Complaints Authority, the Bar Council and the Justices' Clerks Society, as well as the representatives of the police services, agreed that the new body should be able to commission investigations from the police.
Many of the best-known cases in recent years came to notice through the efforts of the hon. Member for Sunderland, South and others. Each, crucially, required thorough police investigation to uncover the evidence on which the cases were referred and the convictions quashed. The cases of the Guildford Four, the Birmingham Six, the Darvell brothers, who were convicted of the murder of a Swansea sex shop manageress in 1986, and Stefan Kiszko are all examples of referrals following patient, thorough police work.
The Bill requires the commission to be satisfied before making a reference that there is some new element, whether argument or evidence—
§ Sir Ivan Lawrence (Burton)
Will my right hon. and learned Friend not shut his mind to the fact that there is a body of young, retired police officers who do not have 28 a great deal of future, as the system presently operates, within the criminal justice system, in which they have massive expertise? Would he consider the possibility of having a panel of retired police officers, which might go some way towards answering the concerns of the hon. Member for Sunderland, South (Mr. Mullin) because the people concerned would not be serving members in a police force? They could, nevertheless, deploy their expertise in the taking of statements and the investigation of possible miscarriages of justice and, thereby, continue to make a contribution to the criminal justice system when, in all other circumstances, they would have to seek fresh pastures elsewhere. That might also relieve the pressure on police forces.
§ Mr. Howard
I have no doubt that the point raised by my hon. and learned Friend will be considered in Committee. I cannot pretend that I am immediately attracted to it. I confess that I think that the natural people to whom the commission will want to turn, having regard to the fact that the commission will have the power to direct and supervise closely the investigations that are conducted on its behalf, will be the police.
I do not accept that there is anything unsatisfactory about the police carrying out these investigations. I have already said that they are entitled to the credit for the investigations that have been carried out in the past. It will, of course, be possible, as I have said, for the commission to go to a different force. I am not immediately attracted by the suggestion of my hon. and learned Friend the Member for Burton (Sir. I. Lawrence). No doubt it can be considered further in detail in Committee.
§ Mr. Mullin
Does the Home Secretary accept that no one is suggesting that all investigations should be kept away from the police? What people are suggesting—and just about everybody who has first-hand experience of dealing with miscarriages of justice suggests this—is that the commission should have a reserve power which would enable it to order investigations by people who were not police officers if it appeared that the police were not trying hard enough. I am sorry to say that in some of these cases, that has been so. Cardinal Hume, in a letter to The Times today, which I am sure the Home Secretary has seen, makes precisely that suggestion. Will the Home Secretary respond to that?
§ Mr. Howard
Yes, I have read the cardinal's letter. He suggests that the powers available to the commission to direct and supervise inquiries carried out in such cases are unduly limited. I very much hope that he will reconsider that view when he has had more of an opportunity to study the terms of the Bill, because the key to the matter is that there are no sensible limits on the power of the commission to direct and supervise the inquiries that are carried out on its behalf. The answer to the concerns expressed by the hon. Member for Sunderland, South is to be found in that power of direction and supervision. 29 I do not accept the hon. Gentleman's premise that the police have been dilatory in the past. Whether or not that is the case—it is not an argument that we need to get into this afternoon—the new body will have available to it powers of direction and supervision, and will have available on its staff those whose expertise and experience it needs to ensure that the powers are used effectively so that the necessary investigations carried out on its behalf are thorough, expeditious and effective. We must look to those powers to meet the concerns expressed by the hon. Gentleman.
§ Mr. Miller
The Home Secretary will be aware of a dilemma in a particular case, because we have corresponded about it. I will not mention it in detail, because it would be improper to do so at this stage, but the investigating authorities have changed several times during the investigation. Police officers have retired in mid-stream and other changes have occurred which have caused a great deal of consternation in that case. Will he assure the House that the powers of appointment, which he envisages being vested with the new commission, will be used to ensure that the police officers appointed to a case, according to his model of the authority, will be in place for the duration of an inquiry and under the sole control of the commission?
§ Mr. Howard
I think that the hon. Gentleman would accept that it is not always possible to predict the retirement of police officers. It is not always possible to predict that a police officer appointed from the best of motives and with the best intentions, on the basis that he will deal with a particular inquiry for its duration, will continue to be available to do that. Life is, by its very nature, unpredictable.
Subject to that, I see no reason why the commission, when discussing with a chief constable the arrangements to be made for carrying out a particular investigation, should not seek assurances that the chief constable will use his best endeavours to choose officers who will be available for the duration of the investigation to obviate the kind of difficulty to which the hon. Gentleman has referred.
The Bill requires the commission to be satisfied before making a reference that there is some new element, whether argument or evidence in conviction cases, or argument on a point of law or information in sentence cases, which the courts have not previously considered and which gives rise to a real possibility that the conviction or sentence will not be upheld by the relevant court. That is a broad and sensible criterion. It clearly defines the boundaries between the commission's functions and that of the courts. There is no purpose in the commission referring a case where there is nothing new for the courts to consider—indeed, it would be unhelpful if the legislation appeared to leave that possibility open.
The commission will give its reasons to the courts for referring the case, but that will not amount to a recommendation on the merits of the resulting appeal. As I have already said, it is for the courts to decide whether any appeal is to be allowed or dismissed.
We agree with the royal commission that those seeking a review of their case by the commission should be kept properly informed of the progress of any investigation into their case, and that they should be given a full and reasoned explanation of any decision not to refer their 30 case to the courts. The Bill therefore provides for the commission to give a statement of its reasons to the court when referring a case, which it will copy to the parties to the resulting appeal, and its reasons to the convicted person when it decides not to refer. Subject to the need to preserve confidentiality, the commission will be able to keep applicants informed of the progress made in investigating their cases and to disclose information to them so that, in the interests of fairness, they can make further representations to the commission in the light of any matters found.
Investigating possible miscarriages of justice can raise sensitive issues, which need careful handling. The Bill therefore makes it an offence for a member of the commission or one of its staff or an investigating officer to disclose any information gathered by the commission in the course of its activities, save in the circumstances set out in the Bill. The gateways provided in the Bill are sufficient to enable the commission to disclose relevant information in the way that I set out earlier.
The public are rightly concerned about the quality of criminal justice. They demand a system which is effective in every respect and in which they can have confidence—confidence in relation to justice for victims, justice for defendants and justice for society. The Government will not shrink from their duty to provide what the public rightly expect. Our strategy is ambitious and far reaching, and it is broad. It is both careful and valuable. It is concerned with safeguards for the innocent, as well as with the apprehension and punishment of the guilty.
The Bill is of the greatest importance in promoting the aim of a criminal justice system which is strong, effective and fair, and in which the guilty are justly punished and the innocent have nothing to fear. I think that it will be widely welcomed and I commend it to the House.
§ 4 pm
§ Mr. Jack Straw (Blackburn)
The Labour party supports the Bill and will give it an unopposed Second Reading tonight. However, as I shall explain, we have serious reservations about some of its aspects, particularly those relating to the form of investigation undertaken by the proposed commission. We shall pursue those reservations in detail in Committee and on Report.
The Bill's central proposal, for a criminal cases review commission the better to investigate miscarriages of justice, formed one of the key sets of recommendations of the royal commission on criminal justice, which reported in June 1993. Although the terms of reference were wide, the royal commission owed its very establishment to mounting public concern about the ability of the criminal justice system to secure justice for the Birmingham Six and, before them, the Guildford Four and the Maguires.
The royal commission was, commendably, appointed by the then Home Secretary, the right hon. Member for Mole Valley (Mr. Baker), who I see is in his place today, on the day the Court of Appeal quashed the sentences of the Birmingham Six, who had been convicted of murder following bomb explosions in public houses in Birmingham in November 1974 and had served more than 16 years in prison for crimes that the Court of Appeal finally found that they had not committed. 31 Although the number of miscarriages of justice is a tiny proportion of the total number of criminal cases processed in any one year, the effect of such miscarriages on public confidence is huge. On the issue of public confidence, the royal commission said:
The widely publicised miscarriages of justice which have occurred in recent years have created a need to restore public confidence in the criminal justice system. That need has not diminished since we were appointed. In addition to the terrorist cases where the convictions were quashed in 1990 and 1991, there has been since our appointment a fourth such case (Judith Ward) where the conviction was quashed in 1992. There has also been a number of cases not connected with terrorism, the most notable examples being those of the Broadwater Farm Three, Stefan Kiszko, and the Cardiff Three. We are particularly concerned that the last occurred after the implementation of the Police and Criminal Evidence Act 1984 and its related codes of practice.The royal commission continued:
the damage done by the minority of cases in which the system is seen to have failed is out of all proportion to their number. The maintenance of law and order is critically dependent on public goodwill, not only in the need for the law as such to command general assent but in the dependence of the police, whose duty it is to enforce the law, on the willingness of individual citizens to cooperate with them. The proportion of crimes solved by the police without help of any kind from members of the public is negligible, and the ability of the police to perform their function is impaired twice over if victims and witnesses are unwilling to give evidence in court because they no longer believe that trials are conducted fairly.A miscarriage of justice involves the conviction, and usually imprisonment, of the innocent, but it also involves the escape of the guilty. Those who committed the outrages in Guildford and Birmingham have not spent one day in prison for those crimes. However, in any fair system of criminal justice, the burden of proof must be weighted in favour of the accused because of the extreme consequence to an individual and his or her family of a wrongful conviction.
I have nowhere read a better description of the peril of miscarriage of justice than that given by the parliamentary ombudsman in the Preece case. He said:
A miscarriage of justice by which a man or a woman loses his or her liberty is one of the gravest matters which can occupy the attention of a civilised society. And it seems to me that when an unprecedented pollution of justice at its source is discovered, quite an exceptional effort to identify and remedy its consequences is called for.From 1907 until the Bill before us, the source of that exceptional effort to identify and remedy each miscarriage of justice has been the Home Secretary, acting on the advice of officials. Over time, and under pressure from Committees of the House and groups outside the House, such as Justice and the National Council for Civil Liberties, those powers of the Home Secretary and the parallel powers of the Court of Appeal have been widened a little.
None the less, as Sir John May noted in his report on the Maguire case, officials and Ministers have consistently adopted strict self-imposed limits on their discretion to refer cases back to the Court of Appeal. Sir John May said at paragraph 10.7:
However, there is no doubt that the criterion so defined was a limiting one and has resulted in responsible officials within the Home Office taking a substantially restricted view of cases to which their attention has been drawn, as it was in the case of the Maguires. The very nature and terms of the self imposed limits on the Home Secretary's power to refer cases have led the Home Office only to 32 respond to the representations which have been made to it in relation to particular convictions rather than to carry out its own investigations into the circumstances of a particular case or the evidence given at trial. As it was expressed to me on a number of occasions in the course of the evidence the approach of the Home Office was throughout reactive, it was never thought proper for the Department to become proactive".Although that attitude is understandable, given the importance of the separation of the judicial process from political decision making, it has led to a number of miscarriages—no one knows what the total might be—escaping the net. It was the feeling that the current system had fundamental flaws which led the law reform group, Justice, in 1968 to recommend independent machinery similar to, although not the same as, that now proposed in the Bill.
That proposal by Justice was followed by the all-party Home Affairs Select Committee report in 1982, recommending independent machinery similar to that contained in the Bill— recommendations which, sadly, were rejected by the Government of the time.
In 1988, Sir John Farr, a former distinguished Conservative Member of the House, together with my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), moved amendments to give effect to the 1982 proposals of the Home Affairs Select Committee. Sad to say, those were rejected at that time on behalf of the Government by the right hon. Member for Oxford, West and Abingdon (Mr. Patten).
The fact that it has taken more than 20 years' pressure and the incarceration of some innocent people for almost as long a period to persuade Ministers and their advisers of the need for change will, I hope, lead to some humility and cause the same Ministers and advisers to be ready to listen to some important criticisms that we and others have to make of the Bill's scheme of operation.
By their nature, miscarriages of justice arise when there is a failure by police and prosecuting lawyers or by defence lawyers. Those miscarriages have often been compounded by failures in the existing official and ministerial system for considering allegations and referring them to the Court of Appeal.
The Bill clearly recognises the unsuitability of having Ministers make not just so-called quasi-judicial decisions but almost wholly judicial decisions on referrals. That position is remedied by transferring that power to the new commission. The Bill also implicitly recognises that it would be inappropriate for those directly responsible for the prosecution process to be involved in judging whether that process has operated properly in specific cases, or whether it has contributed prima facie to a miscarriage of justice. At no stage, therefore, in the Bill's scheme are the Director of Public Prosecutions or the Crown Prosecution Service given any role to investigate failings by prosecuting lawyers, even if it could be argued that CPS staff are more likely to be au fait with that prosecuting process.
The Bill establishes a new separation of powers in respect both of Ministers and of prosecuting lawyers. In commendably achieving that separation of powers, there is no implication that the public no longer have confidence in Ministers or lawyers to make fair-minded decisions. However, there is a strong implication that justice must not only be done but be seen to be done and that a clear separation of powers, visible and transparent, is therefore required. 33 The Home Secretary made that point in his speech commending the Bill to the House when he said that the commission will be
constitutionally separate from and visibly independent of Government and the courts".That is entirely correct, but I find it difficult to understand why the Home Secretary expresses with such clarity the need for that body to be visibly independent from the courts and from Ministers but does not apply the same clarity when it comes to the need for it to be visibly independent from the police.
There is no clear separation of powers when it comes to the role of the police in investigating alleged miscarriages of justiceBill—notwithstanding the fact that a high proportion of serious miscarriages of justice are likely to involve the police and may include anything from an innocent misjudgment on their part about the credibility of a key witness to serious misconduct of an investigation, including perjury by some of the officers concerned.
Clause 19 gives the commission the power to direct and supervise investigations, but the investigations will generally be carried out by the police. Under clause 18, the basic duty of investigation falls on the chief constable of the force which investigated the original offence. When the commission requires an officer from a different force to investigate a matter, the original chief constable may choose from which force he should come.
I do not believe that the scheme is right in principle. It would be far better if the system of investigation were independent, and were seen to be so. It would be better for public confidence in both the criminal justice system and in the police, and it would save money in the long run. I am not criticising the police, any more than the Home Secretary was criticising the courts or Ministers by proposing a clear separation between them and the commission. I have the highest regard for the police and the difficulties that they face in pursuing the duties that we impose on them, but if the police are seen as judge and jury in their own cause public confidence in them and in the system will not be properly established.
As the Home Secretary said, the new scheme is based on a parallel with the Police Complaints Authority. When I first came entered Parliament I took an extremely close interest in the handling of police complaints and I must say that I do not regard the Police Complaints Authority parallel as helpful. I know of the dedication and commitment of the authority's staff and its members, and I know of the exacting standards that senior investigating officers and their teams of police officers set in seeking to root out corruption and other unacceptable practices committed by a tiny minority of police. No group is more offended by corruption or malpractice in the police force than the 99.9 per cent. of police officers who do a difficult job exceptionally well and to the highest standards.
Despite the commitment and dedication of the PCA and of police at all levels, however, the unpalatable truth about the Police Complaints Authority is that it has failed to instil public confidence because the public believe that, under this system, the police are investigating themselves. 34 When the Police and Criminal Evidence Act 1984 which established the Police Complaints Authority came before the House, the Police Federation perceptively noted:
It will not enhance public confidence in the system and will probably not improve police morale either. We remain firmly of the view that only a wholly independent system of investigation will satisfy all parties.That lack of full public confidence has had severe consequences for the PCA. I believe that it has led to an increased case load and an elaborate waste of resources on patently unmeritorious complaints because of the public's reluctance to take no for an answer. How often have hon. Members on both sides of the House been visited by members of the public who are dissatisfied with the results of PCA investigations?
More significantly, that lack of confidenceBill—however unfairBill—in the authority's system is leading to increasing use of more direct remedies to alleged police malpractice, bypassing PCA procedures. In the 12 years from 1981 to 1992 in the Metropolitan police area alone, there was a fivefold increase in cases pursued through the civil courts against the police for assault, false imprisonment or malicious prosecution. Those actions were consciously brought to bypass PCA procedures. In 1981, 92 such cases went to court; by 1993–94 the figure had increased to 494.
The problem with the PCA is that it has lagged behind public opinion. It is essential that does not happen with the new criminal cases review commission and that we get it right first time. Above all, we must get it right in terms of public confidence, which can be secured only if the commission is seen to be independent.
There are practical reasons for ensuring that the commission's independence is beyond doubt. From its inception, the CCRC is likely to be overwhelmed by a huge backlog. Many cases, almost by definition, will be unmeritorious but they will all have to be sifted and carefully reviewed. It is vital that when the commission says no to an application, that will be taken as no by the applicant, his or her advisers, those who monitor the system and, above all, Members of Parliament. If the review process's independence is not established in the public mind early on, the commission will be under constant and costly pressure to reopen cases.
Those who argue in favour of the Bill's investigation scheme, whereby principal responsibility rests with the police, do so on the ground of practicality. Although the Home Secretary did not say this, my reading of the royal commission's recommendations was that they were an implicit admission that, in principle, it might be better for investigations to be undertaken by a core staff dedicated for that purpose and employed directly by the commission; but in the view of the royal commission, shared by the Home Secretary, that approach was overwhelmed by questions of practicality.
I do not find those arguments persuasive. The first argument, which the Home Secretary deployed, is that the commission must have access to the knowledge and wealth of expertise of the police. Others argue that it is essential for investigators to have up-to-date knowledge of police methods. I believe that that view is held by the Association of Chief Police Officers. It is important that we should take account of the views of ACPO and others directly involved. The point is made also that police methods change rapidly and radically. I accept that premise, but not the conclusion that it is possible to draw 35 on police knowledge and expertise, or to have access to current police methods, only through the use of currently employed police officers.
We believe that there should be a corps of investigators employed directly by the commission, some of them permanently. The hon. and learned Member for Burton (Sir I. Lawrence) made the important point that, with all the changes which followed the assault by the right hon. and learned Member for Rushcliffe (Mr. Clarke) on the police service, a large number of extremely skilled and relatively young police officers are approaching redundancy. They are not all ready for the retirement heap. They are experienced, and they could form part of the commission's core staff.
§ Mr. Mullin
May I put it to my hon. Friend that this corps of dedicated staff should not consist only of retired police officers? There are one or two well qualified journalists who have built up some knowledge in this area and who might prove suitable.
§ Mr. Straw
I share one thing with the Home SecretaryBill—I had anticipated my hon. Friend's comments. The next page of my speech goes on to say that not only police officers are skilled in this area; journalists and solicitors are, too. The most serious miscarriages of justice, which my hon. Friend played such a crucial part in remedying, were uncovered initially not by the work of the police but by the work of journalists, Members of Parliament and solicitors.
§ Mr. Bennett
Does my hon. Friend agree that, besides police officers who are nearing the age of retirement, there are also many officers who have unfortunately been injured in the course of their duties and who cannot continue to perform as full constables? They are perfectly capable, however, of carrying out this type of investigation.
§ Lady Olga Maitland (Sutton and Cheam)
Would the hon. Gentleman agree that there is a danger in journalists of the kind whom he has in mind being asked to take an active role in these investigations? They are usually campaigning journalists with a political axe to grind. Surely it is important to ensure that those who take part are politically impartial.
§ Mr. Straw
Of course I accept that, but I do not subscribe to the hon. Lady's assertion that all journalists with an investigative bent follow a particular political agenda. Evidence of the serious and endemic corruption in the Metropolitan police, from which so many of the police's problems with public perception stem, was produced in the late 1960s and early 1970s not by the 36 police but by courageous journalists employed, for example, by The Times and the "World in Action" programme—
§ Mr. Straw
Nor do the rest of us, of course. I write for it, though, and I can understand what I write.
To continue my point about the possibility of some police working directly and permanently for the commission while others are seconded for a period, there is a long tradition in the police service of some high-flying police officers being seconded to national squads, or to the Home Office to work alongside HM inspectors of police. There is no reason why such officers should not be seconded to the new commission. In large forces some officers are in any event seconded from operational duties to run the complaints service, so I see no major issue of principle at stake.
As for whether police will have an intimate knowledge of the police service, the culture of different police forces varies so much—as those of us with experience of more than one force will know—that it would, indeed, take an officer from the same force to know all the wrinkles of that force's culture. Nevertheless, people on all sides of the argument have accepted that the last people who should investigate allegations of serious miscarriages of justice are officers from the force involved.
I do not, therefore, honestly believe that there is much force in the argument of the Home Secretary and of those who support him—that it would be wrong for the commission to have a corps of staff investigators to take on the central burden of investigating the cases that come before them. The corps could, of course, draw on other police forces elsewhere in the United Kingdom as the caseload and the types of cases required.
The other argument advanced by the Home Secretary in the consultative document was that the caseload would vary. That, too, was an argument against having such a corps. It is true that the case load will vary, but the case load of police forces varies enormously, especially that of specialised squads. No one is proposing that there should be a large standing army of investigators to deal with the maximum caseload. Instead, we are proposing that there should be a corps of investigators employed or seconded to the commission, which will be there to deal with the minimum foreseeable case load, which is likely to be quite substantial for the next five to 10 years.
The Home Secretary's consultative document described a corps of staff as the
worst rather than the best of both worlds.Having read the relevant passages with great care, I do not understand the argument that is advanced in the document. There was no evidence to support it. In our view, a corps of staff would produce the best of the options rather than the worst.
The final argument in support of having a corps of staff relates to costs. It is claimed that the costs of a corps are likely to be greater than those of using police officers who are brought in on a case by case basis from either the 37 originating force or another force. Unless it is suggested—which it is not—that there should be an enormous standing army of investigators sitting idle at their desks, there is no reason why a corps of investigators directly employed by the commission should be any more expensive than the alternative approach. In our judgment a corps of inspectors would probably be cheaper because directly employed investigators used properly are likely to be cheaper than officers brought in on a contract basis.
As I have said, the more a corps of inspectors establishes its independence the more quickly it can dispose of unmeritorious cases and the more quickly, and with less cost, it can proceed to pursue the serious allegations that come before it.
For perhaps the first three quarters of the century, crime in its formal, legal sense was something that happened to other people. As a result, most people lived their lives with only the most tangential contact with the criminal justice system—for example, perhaps a short period on jury service and one appearance in the magistrates court on a motoring charge.
A culmination of changes in the past two decades has brought crime much closer to the lives of this country's citizens. Crimes of violence used almost always to be perpetrated on victims known to their assailants. Terrorist bomb outrages have made random victims of shoppers, children and passers by—as has football hooliganism, though in a more limited way. Increases in national wealth and consumer spending combined with widening inequalities of income and life's chances, along with the scourge of drug addiction, have led to rocketing levels of crime. Almost everyone these days has experienced crime within their own recent memory, or knows someone who has. People have a much closer and more personal interest in whether the criminal justice system is working for them than ever they did in the past. It is sad that in many respects the criminal justice system is failing. It is not meeting what the public expect of it.
The royal commission was right to draw attention to the
force of criticisms which can be directed against a thoroughgoing adversarial system which seems to turn a search for the truth into a contest played between opposing lawyers according to a set of rules which the jury does not necessarily accept or even understand.The police, at the sharp end of the fight against crime, are placed in personal danger in a manner that few of us would accept for ourselves. They are right to draw attention to the failings elsewhere in the criminal justice system, to the increasing public demand for stronger regulation and to the need for higher standards to be exercised by the legal profession.
Of all the failings which can arise within a criminal justice system, none is worse, or more calculated to bring the entire system into disrepute, than a serious miscarriage of justice. The Bill is certainly a great improvement on what has gone before, and we intend to introduce further improvements in Committee. I hope that at that stage Ministers will listen. Had they listened before and accepted the overwhelming need for change years ago, some innocent people might not have had to spend the best years of their lives locked up unjustly for crimes that they did not commit.
§ Mr. Kenneth Baker (Mole Valley)
I welcome the Bill; I also welcome the news that the Opposition will not divide the House. In matters of this sort, the more that we can proceed with agreement between the parties the better—although I accept that the hon. Member for Blackburn (Mr. Straw) will table amendments in Committee to reflect his reservations.
The hon. Gentleman reminded us that way back in 1991, on the day when I exercised my powers following the release of the Birmingham Six, I announced the establishment of the royal commission on the criminal justice system. I did so because there was real concern and disquiet about the system, on two counts.
§ Mr. Baker
The court made the recommendation that they should be released; they were released, and it was correct for them to be released. My point, however, was that on the same day I announced the establishment of the royal commission.
As I was saying, there was disquiet on two counts. There was disquiet about the fact that in some cases guilty people were not being convicted, and about the fact that in others innocent people were being convicted. The purpose of the criminal justice system is, of course, to convict the guilty, but also to make quite sure that the innocent are acquitted. That is basically why the commission was established, although other matters were referred to it.
During the 1980s, there was an increase in the number of referrals by the Home Secretary to the Court of Appeal on questions relating to whether a verdict was sound. In 1981, one of my predecessors, Lord Whitelaw, referred just one case; but 20 were referred in 1990, 12 in 1991 and 11 in 1992. The number of referrals peaked during those three years.
§ Mr. Corbyn
Would the right hon. Gentleman care to comment on the difficulty of placing a case before the Home Secretary, ready for referral? Many people's cases are not particularly high-profile in political terms; such people have no influential friends or access to the media, and their cases are often ignored because no one is speaking up for them. Cases involving people who are better able to bring them to the Home Secretary's attention, however, are referred. Does the right hon. Gentleman think that the Bill will provide more equality of access to the Court of Appeal?
§ Mr. Baker
In short, yes. Before I give a full answer, however, may I describe the procedures that currently operate, which I experienced as Home Secretary?
Most of the cases with which my predecessors—Lord Waddington and the present Foreign Secretary—and I had to deal dated from before the Police and Criminal Evidence Act 1984. Many concerned the conduct of the police in questioning suspects at an early stage of inquiries. As the hon. Member for Blackburn pointed out, however, some cases now being referred are subsequent to the Act. I believe that its provisions established proper and effective procedures which, if followed through, eliminate a great deal of the concern expressed in the 1980s about possible miscarriages of justice. 39 During the years when I was Home Secretary, I referred 14 cases involving some 19 individuals. Some were high-profile cases: Broadwater Farm, Stefan Kiszko and Judith Ward. Then as now, the Home Office department that dealt with such cases was C3, and I considered some of the officials who answered to me then to be some of the most scrupulous and fair-minded civil servants whom I had encountered. I pay particular tribute to the assistant secretary who headed the department at that time, Mr. Baxter—who has subsequently died—but all the officials in that section of the Home Office were scrupulous, fair and determined to ensure that justice was done. I want to put that on record, because it is sometimes said that cases have been brushed under the carpet or delayed.
I understand from a recent parliamentary question that the average time for dealing with a case is some 36 working days. That is an improvement in some Departments on the way in which letters are dealt with by some Members of Parliament.
§ Mr. Baker
I will pay tribute to the hon. Gentleman, later, if I may. There are some cases that take much longer than 36 working days. Some take more than a year, because the investigation is very complicated. Indeed, the cases in which the hon. Gentleman was directly concerned took much longer than a year. That is the system that operates at the moment.
On the recognisability of the case, from the point of view of public concern, in the cases with which I was concerned, the investigation by C3 were the fullest and most scrupulous that I have seen. The dossiers that came to me as Home Secretary were certainly the thickest and one could examine virtually every aspect of the case, so I was satisfied that the investigations were being carried out scrupulously.
I was also satisfied that it was not the correct way of doing it. There are two considerations. First, should a member of the Executive—the Home Secretary in this case—have a role in what, essentially, was a quasi-judicial process? It appeared clear to me that that should not be the case and that that was one of the areas where the powers of the Home Secretary should be conducted by other public bodies.
Secondly, there is, of course, an important constitutional question, which is resolved by the Bill, and which my right hon. and learned Friend the Home Secretary and the hon. Member for Blackburn touched on. Under the present arrangements of C3, the officials, who are acting on behalf of the Home Secretary, are, of course, restricted from doing certain things, and rightly so. They are not allowed to direct and supervise the inquiry, and I do not think that any hon. Member would ask that they should be, because a moment's reflection would soon reveal that that would be an incredible extension of the powers of the Home Secretary, on behalf of whom they are acting.
In clause 19, the new commission is given the power to direct and supervise an inquiry in a way in which the present officials simply cannot do. It can hold the investigators who are conducting the inquiry much more to account. It can ask them to do certain things. It can direct their inquiries in a way in which civil servants 40 simply would not be allowed to do under the present arrangement, so there is a good constitutional reason for the Bill.
I welcome the various proposals that are contained in the Bill. I welcome the independence of the criminal cases review commission from the Executive of the day—in other words, the Home Secretary. I also welcome its extension to summary cases. As my right hon. and learned Friend reminded the House, the only power that the Home Secretary has where there has been a miscarriage of justice in a magistrates court is to exercise the prerogative of mercy. It fell to me to exercise the prerogative in perhaps two or three cases. Of course, that does not set aside the conviction. The Home Secretary cannot set aside a conviction of a court; only a court can set aside a conviction of a court, and so that remains on the record. That seemed to me to be very wrong and I am glad that it has been corrected by the Bill.
I also welcome the fact that the appeal courts will have the power to ask the commission to examine cases. That is a fallback position, but an important one to have. I understand that the Lord Chief Justice has welcomed that provision. I also welcome the extension of the powers of the court to consider the sentence as well as the conviction. That will be one of the main reasons for the increase in work load of the commission, because I suspect that many people who feel that they have been wrongly treated in the courts, as regards the conviction and the sentence, will refer their case to the commission.
On investigatory powers—a matter that was raised by the hon. Members for Blackburn and for Sunderland, South (Mr. Mullin)—I share the view of the Runciman committee that there is no practical but to use the police forces, but I think that what the hon. Member for Blackburn said should be looked at carefully by my right hon. and hon. Friends. It is a question of carrying the conviction of the public. In my experience, where police forces were asked—I asked on several occasions—to examine the conduct of another police force, the reports that I got were not cover-ups. They were thorough investigations. The investigations in the celebrated cases that derived from the Irish terrorist cases wore undertaken by other police forces and revealed the circumstances that led to the sentences being set aside. I have every confidence that, in general, the police are the right people to do it.
Clause 18 provides that when the commission appoints an investigating officer, he can be either from the force in question or from another force. It would be more appropriate if the general rule were that the investigating officer should be from another force. That may go some way towards meeting the anxieties of the hon. Member for Blackburn.
In principle, I would not go along with the Opposition proposal for another corps of investigators. In effect, such a corps would need to be given full police powers and it would have to be a properly constituted body with all the disciplinary procedures that attach to police forces. That would probably be too elaborate. I hope that the Government will examine my suggestion of an investigating officer from an alternative police force.
In general, I warmly welcome the Bill. As the Home Secretary and the hon. Member for Blackburn have said, society should not accept a sense injustice in our criminal justice system and people who have been wrongly 41 convicted spending part of their life in gaol. That should be put right as quickly as possible. When I was Home Secretary, I asked the C3 division to deal with such cases even more promptly because I felt that, if someone had been wrongly convicted and deprived of his liberty, that had to be put right as soon as possible.
§ Mr. Chris Mullin (Sunderland, South)
I join my hon. Friend the Member for Blackburn (Mr. Straw) in welcoming the Bill's proposal for a review commission and especially the removal of responsibility from the Home Office. That will come as a relief not only to victims of alleged miscarriages of justice, but, I suspect, to the Home Office itself.
As my hon. Friend the Member for Blackburn said, the establishment of a review commission has been suggested by just about everyone who has ever taken a close interest in miscarriages of justice, starting with Lord Devlin in the mid-1970s and continuing through a Select Committee report in 1982, Sir John May's inquiry and the royal commission report. On two occasions, in 1988 and 1990, Sir John Farr and I moved amendments to Government legislation in an attempt to set up a commission. I had a third go last year.
It is in everyone's interest that the commission works. There is a danger that if it becomes trapped in the narrow approach that C3 and the Court of Appeal have adopted in the past it will become discredited and we shall all be back where we started. It is important to try to avoid that.
Hon. Members have spoken about the Police Complaints Authority which the Government seem to regard as a model of how to proceed. I and, I think, some of my hon. Friends regard it as a model of how not to proceed. That body urgently needs some early successes to show that it is different from what has gone before. Cardinal Hume has a letter in today's issue of The Times which seems to sum up our hopes for the commission. The letter states:
This must mark the beginning of a new era in the handling of miscarriage of justice cases. But that requires the commission to be, and be seen to be, a strong body independent of Government, the courts and the police, capable of fulfilling effectively, and with a sense of urgency, the tasks of considering and investigating allegations of miscarriages of justice when appeal rights have been exhausted.I am afraid that I do not share the rosy view of the right hon. Member for Mole Valley (Mr. Baker) of the C3 department. I entirely accept that civil servants cannot be held responsible for many of the mistakes that have been made, but in some parts of the Bill I see the dead hand of C3. Perhaps I am being unfair to it and I should blame people higher up in the Home Office hierarchy.
Hon. Members have referred to the insistence that all inquiries he carried out by the police. The commission will not even be obliged to supervise because the relevant clause says that it "may" supervise these inquiries. I shall return to that.
Clause 2 deals with the test for an alleged miscarriage. At present, the Court of Appeal can quash a conviction where there is a lurking doubt—I think that that is the expression used by previous Home Secretaries—that it is safe. Clause 2 proposes to change that to "unsafe" without any qualification. As my hon. Friend the Member for Blackburn said, the royal commission suggested that the words "may he unsafe" should he used. Was it intended 42 to make this a stiffer test? If not, why has the wording been changed in clause 2? Likewise, clause 4 uses the expression "capable of belief'. I do not understand what is wrong with the existing formula.
The attitude of the Court of Appeal to cases referred back to it will be crucial because the problem has lain not only with the police or the Home Office but with the Court of Appeal. There has been some change in management at that court in the past few years, but before that it contained some of the most closed minds in the land.
The most legendary case was not any of the terrorist cases that have been mentioned but that of two men, Cooper and McMahon, who were wrongly convicted of the murder of a postmaster in Luton. In the 1970s their case was referred back to the Court of Appeal by four successive Home Secretaries. On each occasion the judges just sat stony-faced and said, "Take them away." In the end, the Home Secretary of the day, William Whitelaw, became so exasperated that he simply gave each of the men a railway ticket and sent them home. They were serving life sentences, so that action by Lord Whitelaw shows how exasperated he must have been. Afterwards he wrote to the men's solicitors a long convoluted letter saying that it did not mean this and it did not mean that and divide by the number you first thought of. Clearly, it meant that as early as 1980 the Home Secretary had entirely lost confidence in the ability of the Court of Appeal to face difficult decisions.
The Carl Bridgewater case is probably the longest-running alleged miscarriage of justice still blocked inside the system. I shall refer again to that case. When it came before the Court of Appeal on a reference by the Home Secretary in 1987 or 1988, the judgment on which the appeal was turned down contained the following remarkable passage, which I shall paraphrase. It refers to a prosecution witness called Mervyn Ritter and it states, "We accept that Mr. Ritter is a pathological liar, but on this occasion we believe that he can be relied upon as a witness of truth." I ask you. That is the intellectual level with which we have been grappling in the Court of Appeal in years gone by.
I was present for the appeals in some of the big cases in which convictions were quashed. I was in the Court of Appeal when Lord Lane, through clenched teeth, quashed the Guildford convictions. One was left with the feeling, which was widely remarked on by those of us who were present, that had the Crown Prosecution Service or the Director of Public Prosecutions left Lord Lane the slightest possibility of preserving those convictions, he would have devised some mechanism for doing so despite the fact that the confessions on which they were based had been shown to be forgeries.
Any student of the difficulties must also look at the judgment in the Maguire case. After prolonged public outrage the Maguire convictions were quashed several years ago. But the judges devised a formula—this was the last fling of the old management in the Court of Appeal, but it was fairly recent—whereby they said, "Oh well, perhaps all seven of them had not been making these bombs and they must have been innocently contaminated." To achieve that remarkable feat they invented a magic towel, which no one had claimed existed. The judges said that it might have existed, that all the defendants might have dried their hands on it, and that that was what led to their being contaminated. When 43 we see people with fine intellects behaving in that manner, we realise that there is a problem in the higher reaches of the judiciary.
§ Sir Ivan Lawrence
I am sure that the hon. Gentleman realises that the distortions of the intellectual process by which those conclusions were reached were not all one way in upholding convictions. There is the famous case of Algar in 1954, where Lord Chief Justice Goddard quashed a conviction for forgery, for which the man had been sentenced to five years imprisonment, with the words:
Do not think that we are doing this because we think you are an innocent man. We do not. We think you are a scoundrel.Nevertheless, the conviction was quashed.
§ Mr. Mullin
Perhaps the same might be said of Lord Goddard. I can only comment that if somebody had a conviction quashed by Lord Goddard, he was a very lucky man indeed.
§ Mr. Corbyn
I was with my hon. Friend when the Guildford Four verdict was announced. Will he bear it in mind that the main problem throughout all the cases of miscarriages of justice has been getting someone to take an interest in them? He, I and, I am sure, many others get hundreds of letters from people, but we have no idea of the justice or otherwise of those cases when we receive them and we lack the ability to investigate.
Is my hon. Friend worried that even under the Home Secretary's proposals, there will still be the problem of the single person rotting away in prison, believing in his own innocence, but having no one outside who is prepared to help him or to give him sound legal advice, and who was probably badly represented in the first place?
§ Mr. Mullin
I am sure that there will still be such cases, but if the commission works properly—and it is in all our interests to ensure that it does—that will go some way towards resolving the problem. We all receive letters from desperate people who have been writing to everyone they can think of. I hope that the commission will be able to deal with some—although probably not all—of those cases.
Incidentally, I do not complain about the fact that our legal system sometimes makes mistakes. All legal systems make mistakes. My complaint over the years has been that, until now, we have lacked an adequate mechanism for correcting them when it has become obvious to sensible people that a mistake has been made.
There was a sea change in the attitude of the Appeal Court following the early retirement of Lord Lane and the Birmingham appeal judgment—and, of course, the Judith Ward judgment, which in a way marks the high point of that change. I have heard it suggested by distinguished banisters that the door may be closing again now that the pressure is off. I hope that that is not the case. I also hope that, when convictions are quashed, there will be no more whispering judges, occasionally even popping up on television programmes, suggesting that although there may have been some technical reason for quashing the case, the accused really did it. I hope that that will not happen again, especially among those whose job it is to uphold the rule of law.
44 I welcome what the Home Secretary said about appointments to the commission. I had intended to make the point, which he made first, that the jobs for the 11 commissioners should be advertised and should be subject to an open interview process in which we can all have confidence. Who is appointed will be crucial to the credibility of the commission. With respect to people who serve on other quangos—and the commission will be a quango —those who serve on the commission will need to be from a slightly different school from some of the people who serve on other quangos. I am putting that point as generously as possible. In particular, there will need to be among the 11 members—and, indeed, among the staff whom they employ—people with a track record of scepticism towards the official version of events.
It was not the C3 department, the Court of Appeal or the police that first alerted the world to the problem; it was people with no direct responsibility. In many cases, they were journalists employed by television companies. Of course, it is always right that in a democracy there is a role for journalists in putting right alleged injustices, but it cannot be satisfactory for any of those associated with the criminal justice system to realise that it has come to depend on such people.
I mention a few people who I think should be considered for the commission. I do so at the risk of damning their chances should they be interested in the job. First, I mention Sir Ludovic Kennedy—
§ Mr. Mullin
I do not know which school he went to, but he is a distinguished person with a long and honourable track record that goes back long before miscarriages of justice had a high public profile. I should also like someone of the calibre of Mr. Paul Foot to serve on the commission. I appreciate that his politics may not necessarily appeal to either Front Bench, but—
§ Mr. Mullin
Yes, he went to a good school. He has a track record second to very few contemporary journalists in his pursuit of unpopular causes such as miscarriages of justice. Should he be interested, I hope that his application will be seriously considered.
I also have in mind Mr. David Jessel, who heads the "Just Television" programme. Again, he has a distinguished track record in drawing the attention of the nation to cases that are not necessarily popular, but need to be examined.
In talking about the composition of the commission, the royal commission said that the chairman should not be a judge. I did not hear the Home Secretary say that he would not be. It would be nice to hear the Minister say so when he replies to the debate. I say with all due respect to anyone who happens to be a judge that it is important that the new body demonstrates its independence not only the Executive but the judiciary.
I was surprised to note in clause 9 a provision to give the commission the power to deal with sentences. I do not feel very strongly about that, but I had never envisaged it being the case. I wonder whether there is a danger that the commission will become flooded with such cases, some of them spurious. 45 The commission's remit extends to England, Wales and, I am glad to note, Northern Ireland. I appreciate that this is not the Minister's responsibility, but I want to know what will happen in Scotland. There is a certain smugness about the Scottish legal system. When the English legal system was in great difficulty, on several occasions distinguished Scottish lawyers came creeping up to me saying, "Of course, this would never happen in Scotland." I think that it could happen; indeed, there have been a number of cases where it has happened. I know from my postbag that a few Scottish cases deserve to go before the commission. Perhaps the Minister will tell us the plans for Scotland.
The royal commission noted that there was a problem with evidence that would not be admissible before a court. Chapter 10, paragraph 67, states:
It is undesirable that the Court of Appeal should in effect be precluded by the current rules of evidence from considering an alleged wrongful conviction. We therefore attach great importance to the review of the rules of evidence by the Law Commission that we have recommended.I would be grateful to know whether that commission will he permitted to deal with inadmissible evidence and whether there are any plans—if there are, the Bill would he the obvious place for them—for loosening the constraints on the Court of Appeal in considering evidence that might otherwise be inadmissible. Hearsay evidence is an obvious example, and the royal commission dealt with that in paragraphs 25 and 26 of chapter 8. It took the view that
in general, the fact that a statement is hearsay should mean that the court places rather less weight on it, but not that it should be inadmissible in the first place.It said that it would he satisfactory for a judge simply to draw the attention of the jury, or of judges if it is an appeal case, to the fact that less weight should be placed on hearsay evidence.
I do not suppose that the problem with hearsay evidence will arise all that often. There was, however, a problem in the Birmingham case. A Member of Parliament had written a book that contained interviews with the persons who had carried out the bombings. He had had better luck tracking down those persons than the people whose job it was to track them down. I sat through the appeal case. Prosecution lawyers for the Crown and lawyers for the defendants all had a copy of that book in front of them. Everyone was aware of it, but none of the book could be referred to, even though it contained a more compelling point than the minutiae of the forensic or the confession evidence.
The Bill is silent on the subject of inadmissible evidence. This is a golden opportunity to amend the law along the lines recommended by the royal commission, if the Government are disposed to consider favourably its suggestion.
§ Mr. Oliver Heald (Hertfordshire, North)
Does the hon. Gentleman agree that, if such evidence cannot be presented to a jury, it would be wrong for it to be allowed to be referred to in the Court of Appeal? In a sense, the jury's verdict could be undercut on the basis of evidence that it had not heard or considered.
§ Mr. Mullin
In all cases, jurors' evidence will be undercut if material comes to light that was not before them at the original trial. That is what happens in cases that go to the Court of Appeal. That is why many 46 convictions are quashed. I am arguing only that common sense should be applied and that the Court of Appeal or the commission should not he prevented from doing their job by having to take too narrow a view of their remit.
The heart of the Bill is the capacity to conduct independent investigations, or rather the fact that the commission will not be able to conduct such investigations. Clause 19 says that commissioners may supervise inquiries carried out by police officers. In the light of all we know, it is incredible that the commissioners will be dependent on police officers and that they are advised only to supervise investigations. I hope that the calibre of the commissioners will he such that they will want to take a detailed interest in the way in which investigations are undertaken.
It is no part of my case that all police inquiries are dishonest. As other people have remarked, no doubt exists that honest police inquiries conducted by Devon and Cornwall police in the Birmingham case, and by Avon and Somerset police in the Guildford case, finally brought those cases to an end. I am sorry to say, however, that there were at least three police inquiries into the Birmingham case before it was brought to an end.
The Devon and Cornwall police inquiry was their second go at it. When the two superintendents conducting the first inquiry came to see me in the House in 1987, their heart did not seem to be entirely in the job. I had to draw their attention to one or two things that they should have noticed. I told them that unless they tried harder than they appeared to be trying, we would be all he back in two or three years' time going over the same ground again. Sure enough, we were. Happily, the second inquiry was led by the chief constable, who took a close interest and insisted on an honest and detailed inquiry. That did not happen the first time.
These inquiries are extremely expensive. Enormous amounts of public money have been wasted on what in some cases are bogus inquiries. The Carl Bridgewater case is the most relevant in that regard. It is now undergoing its eighth police inquiry. I have a list of them. In 1980 and 1981, Cheshire constabulary conducted two inquiries. In 1983, 1984 and 1985, Greater Manchester police conducted three inquiries—that is five altogether. In 1986, Warwickshire constabulary conducted an inquiry. That led to the case being reopened and referred to the Court of Appeal, with the remarkable quotation that I cited earlier.
In 1991, Merseyside police were appointed to conduct an inquiry. In 1994, Merseyside police were reappointed to conduct an inquiry. It does not appear to be getting very far. Amateurs appear to be more successful at turning up new evidence in this case than any of the eight police inquiries that have taken place. There comes a moment when one must recognise that police inquiries in such cases are not going to lead anywhere. One must bite the bullet and do something about it.
There is the case of Mr. Brian Parsons, who, in my view, has been wrongly convicted of the murder of an old woman in Axminster, Devon. The Home Secretary has appointed the force that originally investigated that case, Devon and Cornwall police, to re-examine it. As we all agree, that police force conducted honest and thorough inquiries in the Birmingham case second time around and, I think, in the Darvell brothers case first time around, but it has made it clear to anyone who has ears that it will not pursue the Brian Parsons case. It went even to the lengths 47 of inviting the journalist who has taken a close interest in the case to Devon for an informal chat in a pub, where the assistant chief constable, Mr. Portlock, made that plain.
Mr. Portlock appeared to overlook the fact that the journalist might then talk to me, and that I might mention what had been said in Parliament, which I did the next day. A couple of days after that, the journalist from the Western Morning News received an anonymous telephone call telling him that I had an undeclared interest—my name appears on the notepaper of the "Just Television" programme. That is an unpaid interest from which I gain absolutely nothing. That information could have come only from someone connected with the inquiry. That is how Devon and Cornwall police are dealing with the Brian Parsons case, and it does not inspire confidence.
As my hon. Friend the Member for Blackburn said, resources are being wasted. Millions of pounds have been wasted on phoney police inquiries that are not intended to go anywhere. It would be cheaper to give the commission the power to conduct some of its own investigations. Some of the police inquiries have proved extremely wasteful. Enormous amounts of money have been spent interviewing people who did not need to be interviewed.
In some cases, the results of the inquiries—I think of the reinvestigation by West Midlands police into the Birmingham pub bombings—were selectively leaked to national newspapers in an attempt to rescue some of their friends, who were on trial for misbehaviour. I repeat what I said earlier to the Home Secretary and what he does not accept: to insist that only the police are capable of inquiring into misbehaviour by police officers flies in the face of just about all the advice that he has received from people who have a first-hand interest in these matters. I do not accept the royal commission's rather reluctant conclusion that there is no practical alternative.
The deputation that Cardinal Hume leads takes a close interest in these matters and may share my views, if his letter in The Times today is anything to go by. I note that that deputation contains two former Home Secretaries and one Law Lord, so I do not feel entirely alone on the point that it is sufficient to leave such matters to the police. I cannot understand why the Home Secretary clings to that view. It cannot be on grounds of cost. That policy is more expensive. He may cling to it out of misplaced loyalty to the police, but nor is it in the interests of the police that we continue with it.
My hon. Friend the Member for Blackburn was generous when he discussed the role of the police in these matters and said that he was not referring to the 99.9 per cent. of police officers who were honest. I think that 99.9 per cent. is a little on the high side; I put it no more strongly than that. I am sorry to say that in some police forces, especially in elite detective squads—I know that many Conservative Members are concerned about this, because they have privately expressed this view to me—a culture of perjury grew up over the years. One senior police officer referred to it as noble cause corruption. He meant that if the goal was thought to be worthy. the means did not matter very much.
I well remember that, at the height of the various scandals involving the Birmingham, Guildford and Judith Ward cases, I attended a reception at the Police Federation. A senior member of the federation executive said to me quietly in the corner, "There is nothing wrong 48 with perjury committed by an honest police officer in support of a good cause." That thinking reflects—[HON. MEMBERS: "To you?"] Yes, he said it to me of all people.
§ Mr. Mullin
He was perfectly sober. I am afraid to say that such thinking has infected many police inquiries. It is not right to say that we are talking only about the odd police officer. I repeat that I accept that there are many honest police officers who are as concerned as the rest of us about what has gone on. However, the Guildford and Woolwich cases and the Birmingham case involved fraud and perjury on a massive scale. It was carefully co-ordinated. Police officers must have sat in lecture halls and worked out what they intended to do to get it right.
The fraud and perjury involved officers ranging in rank from detective constable to assistant chief constable. In the Birmingham case, two of the officers who were involved in the investigations and the subsequent cover-up became chief constables. In those circumstances, one cannot expect a police inquiry into the activities of other police officers necessarily to lead to the right result, especially in cases of such seriousness.
I now turn to the transition period. The commission will not he set up for a while and there are a number of cases in the in-tray of the Home Secretary which should not wait until it is set up and running. The obvious one, to which I have already referred, is the Carl Bridgewater case. I take the Carl Bridgewater case and the handling of it as a litmus test of the new seriousness that is alleged to be abroad on the issue. It is a litmus test of whether we are serious in facing up to things that have gone wrong.
The right hon. Member for Mole Valley (Mr. Baker) said that he attempted to speed up the consideration of cases in which people had been in prison for a long time. Two of the defendants in the Bridgewater case have been in prison for more than half their lives. The case against them has comprehensively collapsed. The foreman of the jury at the trial has been on national television saying that the jury would never have convicted if they had known what is known today.
Surely the time has come to draw a line under the case. I hope that the Carl Bridgewater case will not have to wait until the commission is set up. I say the same thing about the Brian Parsons case, to which I have already referred.
If the Bill is handled properly, it represents an opportunity to put behind us the bleak period in the history of British justice of the past few years. I hope that the opportunity will not be thrown away. The Home Office must have noticed that Labour Front-Bench Members are approaching the Bill in a generous spirit. We do so in the hope that the Government —[Interruption.] I am afraid that the Minister is not even listening. I hope that I may have his attention for a moment.
Those of us who care about the issue are treating the Bill seriously and not in a party political way, because the issues involved cut across political parties. One of the great strengths of the campaigns against alleged miscarriages of justice is that it has always been possible, even in the darkest circumstances and at the most difficult times, to attract support across the House. The alliance between me and the former Member for Harborough is the starkest illustration of that proposition. 49 Labour will not oppose the Second Reading, because we want the Minister to take seriously some of the criticisms that have been made. We hope that the Committee stage will not turn into an adversarial process, such as we see in the courts, in which both sides try to outwit each other. We hope that we can come to conclusions that will set up a commission which will endure for many years to come and which will not easily be discredited.
§ Mr. Oliver Heald (Hertfordshire, North)
I welcome the Bill, which is important if we are to maintain public good will and confidence in the criminal justice system. The hon. Member for Sunderland, South (Mr. Mullin) has done a great deal to bring to the attention of the House and of the country at large miscarriages of justice—
§ Mr. Heald
As a barrister, I am willing to give credit to the hon. Member for Sunderland, South for bringing to the attention of the criminal justice system and of the public cases such as that of the Birmingham Six and the Guildford Four, which have been dealt with on appeal. I agree that it was a sad reflection on the system that it took so long for those people to have their convictions quashed.
It is important to realise that the culture in the law is based on a reluctance to change the results of trials by jury except in the most exceptional circumstances. The role of the jury is seen by lawyers as very much the gold standard. They feel that it is important that 12 good men and true have listened to the evidence in the case, have heard the arguments and have been there during the adversarial contest, which is often very much criticised but which involves testing the evidence and ensuring that each argument is put to the test.
I still believe strongly that our Crown court, with the judge and jury working together —the judge as judge of the law and the jury as judge of the facts—has a special place, and that we undermine it at our peril. Although I welcome the Bill as dealing with issues of public good will and confidence, and as bringing a measure of improvement to the system, I do not think that we should lightly criticise our jury system. It is wrong to throw out the baby with the bath water. That is why I especially welcomed the comments of the hon. Member for Blackburn (Mr. Straw), who seemed to take that point very much on board, as does my hon. Friend the Minister.
The three tests that the Court of Appeal has applied—whether the conviction is unsafe or unsatisfactory, whether there has been a mistake in the law, and whether there has been a material irregularity during the trial—are three aspects of the same test: whether the conviction is unsafe. To move under the Bill to a simple test of whether the conviction is unsafe is right. I know nobody who can tell me the difference between an unsafe conviction and an unsatisfactory one. Any decision that is wrong in law or which involves a material irregularity is, by its nature, unsafe. A simpler and more straightforward test is very much to be welcomed.
I am concerned about the remarks by the hon. Member for Sunderland, South about inadmissible evidence. If we say, as we should, that hearsay evidence should not be sufficient to prove a case in court, it is inconsistent to say that one can present hearsay evidence to the court if it 50 may show that an aspect of the prosecution case is faulty. It is not evidence that can be tested. With the best will in the world, if the hon. Gentleman had given evidence to the Crown court in the case to which he referred, and if he had said, "I have spoken to others who admit the offence," how could the evidence have been tested? He would say, "I believed them." But how does a jury get to the root of that and decide what the truth is?
It is different from the normal situation when the members of the jury can see the man or woman who is giving evidence, can see their reactions to detailed, probing questions, who can see their body language and who can even see the look of fear that sometimes strikes a witness when the question goes in, the groundwork having been laid. That is what concerns me, because the hon. Member for Sunderland, South would get rid of the law of evidence as it relates to hearsay evidence. That law has protected defendants, and I believe that it exists for a good reason. I hope that he will reconsider his suggestion.
§ Sir Ivan Lawrence
I follow what my hon. Friend is saying, but did he support the ability of the Attorney-General to refer cases of inadequate sentence to the Court of Appeal? If he did, he accepted that Court of Appeal judges, who were not present at a trial and unable to see the witnesses' faces and the way in which they gave evidence, should be able to do something about the sentence, contrary to that which the judge at the trial had considered to be right.
§ Mr. Heald
As usual, my hon. and learned Friend makes an important point. There is a difference between deciding guilt and innocence and deciding a disposal in a case. My hon. and learned Friend should consider the test that a barrister would apply when deciding whether to advise that a case should go to appeal on the question of sentence. In those circumstances, the barrister must consider whether the sentence is completely out of the ball park, to use a slang expression, and thus obviously light when compared with the crime.
§ Mr. Michael Stephen (Shoreham)
Is my hon. Friend aware that, before section 36 of the Criminal Justice Act 1988 came into force, the Court of Appeal regularly heard appeals from defendants who said that their sentences were too heavy? Section 36 merely redressed the balance in favour of the public, so that someone could appeal on behalf of the public if the sentence was thought to be too lenient.
§ Mr. Heald
I agree with my hon. Friend that it was right to redress the balance.
A barrister would appeal a modest sentence only when he thought that it was quite outlandish that the judge had imposed such a modest sentence in a serious case. There is a difference between taking a view in principle about whether any case of that sort should warrant a sentence so low and looking at the niceties of the case, as my hon. and learned Friend the Member for Burton (Sir I. Lawrence) suggested, and saying that one did not have all the details of the evidence. I do not think that lawyers can employ that test when deciding whether such cases should be appealed on the grounds of sentence.
Even if it could be argued that the jury would not he compromised by being presented with what is currently inadmissible hearsay evidence and by being put in the difficult position of having to judge the strength or weakness of evidence when that jury cannot hear the 51 person say what that evidence is, it would still be wrong if such evidence could be presented at the Court of Appeal stage. If that happened, the role of the jury would be undercut.
The jury may have heard admissible evidence and made a decision on the basis of evidence given by witnesses, but the would then be told, "Yes, you heard all that and made your decision, but we are prepared to overrule you on the basis of what somebody said somebody else had said." I do not think that that would add to the quality of justice in either direction. It would not mean that innocent people subjected to a miscarriage of justice would have their convictions quashed more often on appeal, or that the public would see those who are guilty more readily convicted and with full justice.
Although I understand the call for an elite corps, an Eliot Ness brigade of fighters for justice, I am concerned that an esprit de corps might be fostered in such a force. That would not be healthy. According to the Bill, the supervision and direction of the investigators is in the hands of the commission. The officers used to conduct investigations would be fresh faces and would not serve on each investigation. That means that there would be a turnover of investigative staff, who would look at the issues with a fresh eye. I would have imagined that Opposition Members would also want that type of staff.
§ Mr. Mullin
I agree that it is not necessary to have an elite corps employed by the commission, but what about the complaint made by Cardinal Hume in his letter today that the commission merely has a reserve power to instigate its investigations on an ad hoc basis?
§ Mr. Heald
That argument could be considered in Committee, but I would not want the Bill to give the commission additional powers or to create an elite force. That would not be necessary to achieve a proper investigation of cases. If a particular police force is being impeached in an investigation, there is no reason why another force cannot adequately provide investigators to look into the issues thoroughly. If expert evidence is required, the Bill provides powers for experts to be called in, tests to be done and expert inquiries to be made.
I find it difficult to see what would be achieved by giving the commission greater powers. If one held to the conspiracy theory that every police officer in the country in every force would be prepared to perjure himself to maintain a false conviction, that argument might have some force. The hon. Member for Sunderland, South has not suggested that, however, and has paid credit to police forces who have had to investigate difficult cases. The commission's power to direct and supervise the investigators is at the centre of the Bill, so I find it hard to understand why an elite force of investigators would be needed. They might run the danger of becoming rather sceptical as they investigated case after case after case. Its officers might even become case-hardened to pleas about miscarriages of justice. I am not sure that that force would necessarily work in the way suggested, and it might even he counter-productive.
We must not forget that the police have an up-to-date fund of knowledge of investigative techniques and a proper sense of direction when asking questions of witnesses and testing evidence. They also have a network of intelligence available to them. When the size and scope 52 of an inquiry requires it, the police have available to them a wide range of resources to get at the truth. As has already been said, the inquiries are not always small ones requiring the examination of just a few witnesses; it is often necessary to trawl through mountains of evidence. Therefore, I believe that the present balance is about right.
The Police Complaints Authority has been criticised, but it is not quite correct to make an analogy between the authority and the new commission. The Police Complaints Authority has a different role, because it considers the way in which the police have behaved in particular cases on a disciplinary basis. That is a different kettle of fish from looking at a case which resulted in conviction and deciding whether fresh evidence has come to light or an argument was not been fully presented in court.
The hon. Member for Sunderland, South may have complaints about the Police Complaints Authority with which I probably would not agree, but we are not talking about the same type of operation. Given the type of operation suggested by the Bill, the involvement of the police—provided that they are supervised and directed independently—has a lot to be said for it.
The hon. Member for Blackburn said that the Police Complaints Authority lacked public confidence because more cases arising from it are being brought before the courts. The reason is obvious: a lot of people who claim to have been wronged want a money judgment and substantial compensation for what they claim has happened. That is why they go to court. The number of appeals has risen in the current climate because courts are now prepared to hear those cases and to decide them in a way that they might not have been prepared to do a few years ago.
I do not believe that journalists should act as investigators in those cases. I have the greatest respect for journalists, who have rightly brought many cases to the public's attention, but they are not qualified to prepare a case for the Court of Appeal or to go into the detailed issues of admissibility of evidence and procedural irregularities. The hon. Member for Sunderland, South will have heard all the fine details argued in the Court of Appeal by extremely capable barristers acting for the appellants, and he knows that the niceties are dealt with in the Court of Appeal. Does he really think that journalists have the necessary skills to do that?
§ Mr. Mullin
No one is suggesting that they have. As the Home Secretary made clear, about a third of the members of the commission will be qualified lawyers, whom I would expect to help out in the event of a case being sent to the Court of Appeal.
§ Mr. Heald
The hon. Gentleman addresses a different point. I understood that his earlier point was that the investigators—those preparing cases for referral to the Court of Appeal—should include journalists. The skills necessary to prepare those cases for the Court of Appeal are not held by journalists. They are held by police officers, who are trained to take ustatements and look at the details of the law as they prepare a case. This, however, is different.
I particularly welcome the provisions dealing with magistrates courts. For too long, minor offences such as failing to have a motor insurance certificate—such offences, though important, are minor in the overall scheme of things when compared with the serious cases that we have discussed—have inundated the Crown court 53 every day of the week. In case after case, the appellant turns up with his or her insurance certificate, and the appeal is allowed. The simple procedure that the Bill introduces will refer such cases back to the magistrates courts so that the document can simply be produced, whatever the plea, and the matter regularised.
The commission will want to review some magistrates court cases. Although they do not involve large sums of money and are not the most serious cases, they often involve an individual's reputation. We all know of magistrates court cases where tremendous stress has been caused as a result of conviction and loss of character. I welcome the fact that those cases can now be considered by the commission, taken back to court and dealt with speedily.
I am pleased to welcome the Bill and shall support it today.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
The Liberal Democrats very much welcome the Bill. Indeed, when the Gracious Speech setting out the Government's legislative programme made no mention of it, we immediately sought an assurance from the Home Secretary that he had every intention of introducing it during the current Session. That assurance was forthcoming, and we told him that we wanted the Bill to make rapid progress.
The Bill is long overdue. A small number of miscarriages of justice have brought discredit on the system as a whole and caused a great deal of hardship. One thinks especially of the Stefan Kiszko case, which brought about a great deal of human misery. As the hon. Member for Blackburn (Mr. Straw) said, for all those who are wrongly convicted, others go free and are not pursued because a miscarriage of justice has occurred.
The criticisms and reservations that I make do not represent reasons for delaying the Bill. They are simply ways in which the Bill can be improved as it is considered in more detail. The foremost issue is that of the new commission's independence from the judiciary, the Home Secretary and the Government. Although considerable attempts have been made to safeguard that independence in the format of the Bill, much will depend on who is appointed to the commission.
It is not yet clear whether the chairman will be a member of the judiciary. The Home Secretary did not refer to that, and I should be interested to know, at the close of the debate, whether the Government think that it would be inappropriate for a current member of the judiciary to switch to that post. There is widespread feeling that the chairman should be drawn from another direction—perhaps from the legal profession but not from the judiciary.
There must be a good choice of members of the commission, and the commission needs to be properly resourced. Today, the Government set out the procedures for advertising those posts. Those procedures are welcome and come as a new venture for Ministers. After all, only a week ago they appointed 76-year-old Lord Wyatt chairman of the Tote Board on a salary of £ 90,000 a year, without advertising for, or considering, other candidates. So the Government have turned over a new leaf this week and now propose to advertise posts. I hope that they are not surprised if we are a little cynical and suspicious about whether they will really do that, as bad habits seem to be firmly entrenched in Home Office practice.
54 The second crucial issue is the carrying out of investigations: who will do it and how? I broadly agree with the Government that police officers will be essential to the effective work of the commission. The pool of knowledge, ability, experience and training to do that job as well as it would be done by police officers simply does not exist outside the police service. It is therefore a question of the mechanism and structure in which police officers will be used for that purpose and whether we should go beyond the use of serving police officers and use retired police officers in some circumstances. Although alternative structures for that exist, the use of police officers will he essential.
The arrangements proposed do not even precisely follow those of the Police Complaints Authority, which is open to less criticism than has been made. A system whereby direct supervision is by a member of the authority, who is obviously not associated with the police, has considerable advantages. There would be some merit in getting closer to that format, but other methods could also be employed. We could have an established framework of officers who work directly for the commission, perhaps occasionally seconding more junior officers to it for periods of work.
I am a little reluctant about the setting up of a new national squad as a result of the commission, because one has a feeling that national squads come heavily under the influence of the Metropolitan police. That might not be an appropriate model and the Government must be a little cautious about the formula. I am not satisfied with the assumption that the commission will set in train an investigation, the chief constable will say, "I have a man who can do that," and only in exceptional circumstances will the commission say, "We would rather have it done by another force." That is how the Bill appears.
The prevailing assumption should be that the investigation will be done from outside and therefore normally by another force and, where several forces have been involved in the original investigation and the commission feels that a free-standing group should investigate it in an exceptional case, by a unit to which officers can be seconded. The Government must look more carefully at alternative structures for using police officers, although I believe that police officers are essential for the conduct of those investigations.
Cost is an important issue when we consider how investigations are carried out. I do not know how Ministers can stand by the financial memorandum to the Bill, which says:
it is not anticipated that the Bill will give rise to any extra demands on police resources.If the commission is to direct an investigation to be carried out, if those investigations are sometimes more thorough than those carried out under the direction of the Home Office previously—in some cases, they will have to be, because they will go over cases already dealt with by the Home Office—and if there is an initial rush of cases, as the Government anticipate in resourcing the commission, there will inevitably be pressure on police authorities' resources.
Many police forces suffer from underfunding, not least because of the problems of the funding of police pensions, to which I have directed the Minister's attention before. Police authorities are, for the first time, open to capping—there are directly capped police authorities. 55 Clearly, there will initially be many extra inquiries. The police forces will have to follow the commission's directions on how to conduct the investigations—which may, rightly, be very demanding. I cannot accept that that will not place extra demands upon police resources. If we were to say that, we would be assuming that nothing would be done any better, more thoroughly or more extensively than was done in the past year under the present system. If that is what the Home Secretary is saying, he had better say openly that nothing will be done more thoroughly because the level of investigation will not cost one penny more than it did in the current year.
I am making a distinction between the costs of investigation and those for the administration of the commission. The Government have provided resources for the commission in recognition that it will be more expensive than the smaller Home Office unit. They have openly recognised and assumed that there will be many additional cases in the earlier years.
§ The Minister of State, Home Office (Mr. David Maclean)
I am intrigued by the right hon. Gentleman's suggestion that cases are not being looked at thoroughly now, and that when the system changes and there is a criminal cases review commission, the police will consider cases much more thoroughly. He implies that the police are not thorough at present. I can assure the right hon. Gentleman that that is not the case. When the police are asked to investigate, they do so very thoroughly.
§ Mr. Beith
The point has already been made in the debate that a degree of direction by the commission over the police force will apply in future which did not apply in the case of the Home Office. As the former Home Secretary, the right hon. Member for Mole Valley (Mr. Baker) said, it would have been thought inappropriate in the case of the Home Office. The new system is bound to give rise to extra demands.
Ministers have conceded that there will be more cases. What will the Minister say when several chief constables say to him that he has told them not to spend one penny more on investigations under the new system than they did under the direction of the Home Office, but current investigations are costing them more? Will the Minister say that that will be taken into account in the financial arrangements of police authorities?
It is simply not a tenable proposition to say that the new system will not cost one penny more for the police forces who are doing the spadework. If that were so, the new investigation system would be second-rate—I do not think that that is the Government's intention or what the Bill provides for. I am sure that no self-respecting commission would put up with that. There will be a degree of thoroughness that will cost money, but the Government have not taken account of that.
Clause 2 requires the Court of Appeal to allow an appeal where a conviction is unsafe, but the royal commission suggested quashing convictions that may be unsafe. There is a certain neat logic: to the logical mind, a conviction is either safe or unsafe. If it may be unsafe, it is unsafe—there should not be a reason for a middle category. However, many experienced people believe that narrowing the test will make it significantly more restrictive.
56 In people's minds there is a lurking doubt that the conviction may be unsafe rather than actually being unsafe. That fear that a more restrictive test than that proposed by the royal commission will exist in practice constitutes another of the worries about the Bill. The Government rightly prayed in aid the royal commission and all the work that it did. It must be a matter of concern that the test appears to be narrower.
There are also concerns about disclosure of evidence. The commission has extensive powers to demand information, but the Home Office department C3 is exempted from the disclosure requirements. It is even possible that the commission will unintentionally and unnecessarily repeat C3 investigations and analysis, which could be expensive. The Bill places no explicit obligation on the commission to release evidence on which appeal application has been denied. That has previously been judged as unfair under the present system because it denies the appellant the opportunity to question the evidence on which his application is refused.
Clause 23 sets out exceptions to the duty of confidentiality, but no overt requirement for disclosure in such circumstances. That issue requires further attention.
Although anxieties remain about ensuring the independence of the body, about the structure by which we use police officers in investigations, about the costs to police authorities and other matters, the Bill is welcome. I hope that it will soon be on the statute book and in operation.
§ Sir Ivan Lawrence (Burton)
The sheer size and complexity of the Bill is the complete answer to those who criticised my right hon. and learned Friend the Home Secretary for being slow to bring before the House a measure to end miscarriages of justice. With no draft scheme recommended by the Runciman royal commission and no unanimity about many of the details, a period of consultation followed by close consideration was vital, and took time. We have had enough bad legislation placed on the statute book in haste to justify the careful consideration that the Bill has been given. My right hon. and learned Friend is to be congratulated on producing a worthy Bill that will go a long way towards restoring public confidence in our criminal justice system.
I have reservations about the detail, but I hope that nothing that I say will be taken as a vote of no confidence in the Bill, which takes a substantial step forward. It is just possible that the Bill may be improved between now and its final passing if attention is paid to the various points raised by hon. Members on both sides of the House.
We have already taken considerable steps to ensure that there are many fewer miscarriages of justice than in the past. Tape-recorded interviews have been the greatest single contribution towards the improvement of the criminal justice system. They are now in force, working well and helping to raise the standing and appreciation of police officers' work. Police officers are no longer being constantly attacked for dishonesty in every criminal case because the truth of what was actually said is recorded in the tape recorded interviews. Where those tape-recorded interviews amount to nothing, the burden is placed much more firmly on the prosecution to produce other good evidence of guilt. That in itself tends to reduce the possibility of miscarriages of justice. 57 The independent Crown Prosecution Service standardises the prosecution of offenders and removes the bias previously thought to exist when the police prosecuted. The Police and Criminal Evidence Act 1984 lays down strict criteria governing the production of police evidence and acts as a deterrent to police wrongdoing. That is a saving factor against miscarriages of justice.
Another development has been electrostatic document analysis, which detects inconsistencies and has helped to bring to a more satisfactory conclusion terrorist cases involving miscarriages of justice. There have been improvements in forensic science investigation. There is judicial recognition of the possibility of identification error, which has led to judges having to give guidance to juries about being careful with any identification evidence. We have also seen improvements in the training of barristers and the sharpening of the facility to cross-examine—one of the strongest defences against miscarriage of justice. There have also been improvements in the training of judges to alert them to the possibility of miscarriages of justice.
All those factors have made miscarriages of justice much less likely to occur today than was the case in the 1970s. However, we must continue to improve the processes of investigation and trial to avoid unjust convictions. The provisions in the Bill to improve the work of the Court of Appeal have made a substantial contribution towards improving the system. The court has not always been able to detect miscarriages of justice, so improvements in the appeal stages were recommended by the royal commission chaired by Lord Runciman and form an important part of the Bill.
If the Court of Appeal suspects a miscarriage of justice, it has limited powers. It can quash a conviction or order a retrial. It is perhaps sensible to simplify the overlapping grounds on which at present a Court of Appeal can allow an appeal—because the verdict is unsafe or unsatisfactory, or there has been a wrong decision in law, or there was a material irregularity in the trial—to one test, of whether the verdict is unsafe. However, that depends on what "unsafe" means.
Let me take some examples of the problems that are likely to arise. A verdict may be unsafe because there comes to light evidence that would be inadmissible in law because it is hearsay, as in the case of Algar, about which I intervened with the judgment of Lord Chief Justice Goddard in the speech of the hon. Member for Sunderland, South (Mr. Mullin), or because it is inadmissible under section 76 of the Police and Criminal Evidence Act 1984.
What is the position as far as the Court of Appeal is concerned? Is the criminal cases review commission able to refer to it that type of evidence which might throw doubt on the safety of a conviction? I shall return to that later.
There is the other side of the coin. Let us suppose that the Court of Appeal says, "We have no doubt that the man is guilty on all the evidence, but the police lied about the circumstances in which they took the confession and, had the jury known that the police were lying about that, we cannot say that the jury would not have decided that the police were lying about other parts of their evidence; so we quash the conviction." The Court of Appeal would in effect be saying that the conviction was safe, but that it was thoroughly unsatisfactory, and therefore would 58 quash the conviction because it was unsatisfactory. However, we have deleted the requirement that the conviction be unsatisfactory as a basis for quashing a conviction.
Would such a defendant remain convicted in circumstances in which, at present, his conviction is quashed? It may well be a matter of pure justice that he should be convicted although the trial was unsatisfactory, but nevertheless obviously a problem is likely to arise unless we define better and more clearly what we mean by the word "unsafe".
There are also cases now in which the Court of Appeal says that a verdict is unsafe and unsatisfactory, yet the proviso is applied saying that nevertheless the conviction should stand. Common sense says that, if a conviction is unsafe, it should not stand, and it should not be allowed to stand simply because the reason for saying that it is unsafe is trivial. A conviction is either safe or unsafe. If it is unsafe, it should not stand. There should be no question of any proviso. Is not the logic of that that the proviso should be abolished? Will my right hon. and learned Friend the Home Secretary consider doing that in the Bill?
It is constructive that clause 4 lowers the threshold for the admission of fresh evidence from the standard of whether it is likely to be credible to whether it is capable of belief. However, in my opinion, it would be a great pity if the opportunity were not taken to allow the court to include any relevant or material evidence capable of belief that is not produced at the trial, even when the reason was negligence or error of judgment by the defendant's legal advisors, provided that it had not been deliberately left until the appeal before being produced. It always appears to me to be terribly unjust that the faults of legal advisers or counsel at the trial should lead to the quashing of a conviction.
Perhaps it is not necessary to include it in the legislation, but it might help to reduce the miscarriages of justice if the Court of Appeal used its power to order a retrial more frequently then it does, in circumstances where fresh evidence would require a jury's verdict and no harm would be done because of passage of time or the sensitivity of victims or even perhaps the sensitivity of the defendant.
I have perhaps said enough in a Second Reading speech to show that there may be problems with the wording of clause 2. I have had the privilege of reading a draft article by Professor Sir John Smith QC, who raises other doubts in addition to those, and I would advise my right hon. and learned Friend the Home Secretary to consider its contents before going firm on that clause.
The Society of Conservative Lawyers sub-committee on criminal justice and miscarriages of justice, which I was privileged to chair, said in its evidence to Lord Runciman that it was undesirable that miscarriages of justice, which were essentially a legal matter, should involve the Home Secretary so closely. Although all fair-minded and unbiased people would accept that there has been no reason for supposing that successive Home Secretaries have been other than impartial, the belief is sometimes fostered by Opposition Members and others that decisions were political. Media pressure and the representations of archbishops and others often appear to influence such references hack to the Court of Appeal. 59 Further, the Home Secretary's guidelines appear to say that positive proof of innocence would almost need to be required before the Home Secretary refers cases back. As such references are based on the papers in the case, and the papers seldom show police dishonesty or wrong conclusions drawn by forensic scientists or eye-witness error, it is obviously sensible that that whole murky business of the Home Secretary's part in referring matters back should be cleared up once and for all. It follows that I very much welcome clause 3, which abolishes the need for the Home Secretary to refer cases to the Court of Appeal.
Potentially, the most important contribution of the Bill to the reduction of the number of cases in which an innocent person is wrongfully convicted is the establishment of the criminal cases review commission. That was recommended by all the people who have been mentioned, and by the Society of Conservative Lawyers in its evidence to Lord Runciman, as an additional filter to avoid injustice, because we did not think that the Court of Appeal was suited to perform the functions that we had in mind.
We recommended just such a board or commission as is contained in the Bill, but we made an addition that does not appear in the legislation. We said:
A properly funded organisation would be needed under a Director adequately staffed by solicitors, investigators (who could be former police officers), accountants, computer experts and forensic scientists. They should be able to seek assistance from outside bodies. There must be access to relevant police and prosecution files and the body must have full investigative powers. Advice and directions could be given by a panel of senior lawyers.It appears that that type of organisation is not what my right hon. and learned Friend the Home Secretary has in mind, which is a pity.
There are very good reasons why the investigative body should be made up of police officers, and specifically there is a need for such investigators to have police powers. However, the sheer number of investigations per year, which might increase to the present number of referrals—800—and the strain that that would place on police forces, must raise the possibility of including people other than existing members of police forces. When Operation Countryman was going on, I heard that it was impossible for some police forces to operate properly because so many police officers were seconded to take part in that inquiry.
We must be cognisant of the public scepticism about police investigating police. We did something to address that concern by establishing the independent Police Complaints Authority and the Crown Prosecution Service. However, it was aggravated by Operation Countryman's complete failure to bring anyone to justice, notwithstanding what was generally considered to be a thoroughly unsatisfactory situation. It was widely believed —I think with good reason—that nothing came of Operation Countryman because it was a case of police officers investigating police officers.
I made the point by way of intervention during my right hon. and learned Friend's speech that many excellent, young though retired and experienced police officers— some of them of senior rank and all of them very responsible—might well have their expertise employed usefully in investigations and inquiries. I hope that my 60 right hon. and learned Friend will examine whether it is possible to improve the investigation procedures of the proposed commission.
I do not suggest for a moment that journalists are the best statement takers. Judging from the quotations that I have allegedly given to journalists in recent years, I consider them to be the worst statement takers. Comedians could take statements as well as journalists do, but I do not think that anyone is suggesting that investigations should be in the hands of comedians.
I have already alluded to a problem with the procedures of the new appellate body which is not like the Court of Appeal. New evidence may be discovered which is not admissible in law and therefore, under the existing rules, would surely have to be rejected by the Court of Appeal. Everyone may realise that a miscarriage of justice has taken place, but nothing can be done about it because the commission has discovered evidence which is inadmissible in the Court of Appeal to which the matter is referred.
We will be no further advanced in curing miscarriages of justice if that is the end of the road. How will we remedy that problem? I am afraid that there may be no alternative but to admit hearsay or any other kind of inadmissible evidence. In its evidence, the Society of Conservative Lawyers said:
we do think that certain miscarriages of justice where the wrong person is convicted might be avoided if the defence could in some circumstances rely on 'hearsay' evidence.We suggested:
So-called 'self-serving' or 'exculpatory' statements should be admissible to show consistency";obviously that was at the point of trial. We also suggested:
The defence should be able to adduce 'hearsay' if it can satisfy the judge that direct evidence is not available in practice, that the evidence is relevant, that it comes from an apparently reliable source, and that justice requires its admission".I think—the draft article by Professor Sir John Smith suggests this also—that we should grasp the nettle.
The object of this exercise is to abolish miscarriages of justice as far as we can—I add that qualification because we can never exclude the possibility that people will deliberately lie in circumstances when those lies cannot be detected, or that eye witnesses may make honest mistakes but no evidence exists to the contrary. If we are to deal effectively with miscarriages of justice, we must consider the need for some far-reaching changes in the rules of evidence.
It is not enough to state in the Bill that the test is whether or not the verdict is "unsafe" and expect the courts to interpret it anew. We would spend all of our time in the Court of Appeal arguing what "unsafe" meant. It is not enough simply to set up a commission without considering what kind of evidence it might discover which would then come up against the buffers of existing rules of law and practice in our courts.
§ Mr. Stephen
My hon. and learned Friend suggests that hearsay evidence might be admissible in certain circumstances to avoid miscarriages of justice, to the 61 detriment of the defendant. Does he accept that, as my hon. Friend the Member for Hertfordshire, North (Mr. Heald) suggested, the admission of hearsay evidence might result in miscarriages of justice, to the detriment of the public?
§ Sir Ivan Lawrence
That has always been an argument against admitting hearsay evidence. However, we are talking about a conviction as a result of evidence which may be suspect, although the reason for thinking that it is suspect may not he admissible. We are not talking about those miscarriages that acquit the guilty; the Government have toughened the laws of criminal trial to ensure that miscarriages of justice involving the acquittal of guilty persons do not take place. Today, we are discussing miscarriages of justice where we convict the innocent. It is in that context that the question of hearsay evidence which helps the appellant may need to be raised and considered.
§ 6.6 pm
§ Mr. Neil Gerrard (Walthamstow)
Like previous speakers in the debate, I welcome the establishment of the criminal cases review commission, and I shall refer to those parts of the Bill which deal with it.
The Home Secretary did not convince me with his defence of why the commission was such a long time coming. I might have been more receptive to his explanations before the enactment of last year's criminal justice legislation—which included provisions such as removal of the right of silence—which will probably lead to more miscarriages of justice.
However, we all welcome the establishment of the commission, and we must ensure that it works as well as it possibly can. The concerns that have been expressed on both sides of the House go to the detail of how the commission will work. It is absolutely critical that the legal profession and the public are confident about the commission's workings from the beginning. Such confidence is vital if the commission is to work well and to be respected.
I shall refer to two areas relating to confidence. The first is the composition of the commission. Clearly, we will not debate whom the commission should comprise today or in Committee. However, it is important to examine how its members will be appointed, and I welcome the Home Secretary's advice that the positions shall he advertised. As my hon. Friend the Member for Sunderland, South (Mr. Mullin) said, the commission's membership is important, because that will determine the way in which the commission is perceived initially.
Some members of the commission should have a legal background, but I hope that there will be a wide interpretation of the description of commission members in clause 8. Paragraph (6) states that they shall be
persons who appear to … have knowledge or experience of any aspect of the criminal justice system …I was pleased that the Home Office discussion paper stated:
The most important qualifications for the work which the Authority will undertake are likely to be an ability to assess and interpret facts and behaviour; patience and sensitivity; an 62 open-minded determination to get to the root of what are often complex and enigmatic problems. As several commentators have noted, a fresh perspective is likely to be especially valuable in reviewing cases which the ordinary processes of law have failed to resolve satisfactorily.It was thought that that might be provided by appointing non-legal members with experience of the criminal justice system and others who could bring a range of appropriate skills and experience from other backgrounds. The Home Office clearly had in view a wide range of people, and I trust that that will be reflected in the appointments.
The commission should reflect to some degree its potential client group, and should hear in mind strong evidence of the disproportionate effects of the criminal justice system on people from ethnic minority backgrounds. We know from some evidence given to the royal commission that the workings of the system contribute to the experiences of black and other ethnic minority defendants in respect of admissions, pleas of guilt, court of trial, whether or not bail is granted, and sentencing. The commission will also be able to consider sentencing.
The 1992 study by Dr. Roger Hood of the sentencing of black defendants was commissioned by the Commission for Racial Equality, and its chair introduced that report with the observation that, if sentencing by the courts had been within the scope of the Race Relations Act 1976, the discrimination uncovered by Dr. Hood's rigorous statistical analysis would nave been unlawful. That seems to indicate some problems, and implies that, if the commission is to deal with sentencing also, it will have some work to do.
When Home Office Ministers make appointments to the commission, I trust that they will remember those Home Office reports, and that it is made clear from the start that people from a wide variety of backgrounds are encouraged to apply. The independence of the commission's investigations was mentioned by my hon. Friend the Member for Blackburn (Mr. Straw), and the hon. And learned Member for Burton (Sir I. Lawrence) expressed reservations about the processes for which the Bill provides. Part of the commission's work will be uncovering police malpractice. That is not to suggest, as other speakers have made clear, that all policemen are corrupt. However, we know from earlier cases of miscarriages of justice that police malpractice was involved. It is wrong in principle to use in the work of uncovering such malpractices currently serving police officers.
There is a real and dangerous lack of public confidence in police internal investigations. It is clear that the Police Complaints Authority is not regarded with any great confidence outside the House. In 1993, of nearly 18,000 complaints to the PCA, only 227 led to disciplinary charges. In more than 90 per cent. of cases, no disciplinary action was taken. One can only conclude that there is something wrong with the system, or that there are an awful lot of congenital liars about the place.
My hon. Friend the Member for Blackburn pointed out that the consequence is less use being made of the PCA and more use of civil actions against the police. I do not want that lack of confidence replicated with the commission.
I am not convinced that the skills and expertise needed to investigate an alleged miscarriage of justice are necessarily the same as those required in day-to-day 63 police work. I am not convinced either that the proposed powers of supervision and direction are the same as direct control over an investigation.
Linked to public confidence is accessibility—the barriers to a case being considered. The Government are concerned about the commission being swamped with thousands of spurious cases, which would prevent the new body from doing its work. We obviously do not want the commission's time wasted, but we must consider not just highly publicised, high-profile cases—significant though they may be. Many of the people who approach hon. Members alleging that they are victims of miscarriages of justice are not well known, and do not have easy access to support and advocacy. They may have difficulty with reading or writing, and in presenting their cases effectively. They may be people of limited means.
The provision to self-refer to the commission will be important, but so will he the way in which an initial approach is assessed. Applicants should not easily be rejected because of the sometimes inadequate nature of their initial approach. Accessibility applies also to referral to the Court of Appeal, to which I will refer later.
As Members of Parliament, we are approached by members of the public who protest their innocence. In some cases, they do not present much in the way of new evidence. In others, one may feel that the contrary evidence is more credible. In any event, we do not have the ability to undertake in-depth investigation. In my experience, the greatest difficulties arise where a jury's decision is involved, and it is not easy to identify a new avenue of inquiry, even though one may have serious doubts about the safety of a conviction.
I have spent most time on a case involving a young African woman convicted of drug smuggling, sentenced to seven years in prison and then deported. I was convinced of her innocence but, given the circumstances, it was extremely difficult to pursue that case through the present system. There should he no difficult hurdles in the way of access to the commission when it is investigating such cases.
The same applies to referrals back to the Court of Appeal. Under the Bill, referrals after a conviction must be based on an argument or evidence not already raised which gives rise to a real possibility that the conviction would not be upheld. The question then is: how far is the commission being asked to make judgments about whether a conviction would be upheld? Would not a more realistic test be whether the evidence was not incredible and was relevant?
Surely the court is the place to decide whether a conviction should be upheld. I know that these judgments have to be made, but we often hear complaints about the Crown Prosecution Service to the effect that it has made a wrong judgment about the possibility of obtaining a conviction. The hurdles placed before the commission when it comes to scrutinise miscarriages of justice should be made as low as possible.
I should like to ask the Minister for clarification of three clauses. First. I am worried about the impact of clauses 16 and 17, the second of which refers to old cases. My hon. Friend the Member for Denton and Reddish (Mr. Bennett) asked the Minister about the range of cases that the commission might he able to look at.
64 Clause 17 relates to access to documents, while clause 16 states that the commission may have access to documents from public bodies, if a
person serving in a public body has possession or control of a document or other material which may assist the Commission".But clause 17 makes it clear that that does not apply to material in a Government Department if the document or material
is relevant to a case which the Secretary of State has at any time considered with a view to deciding whether to make a reference under section 17 of the 1968 Act".That would seem to have serious implications for cases such as that of the Bridgewater Three, which involved the Secretary of State considering whether to make a reference under section 17.
To be sure, the Secretary of State will give the commission documents containing representations made to him—but one assumes that they would be easy to get hold of anyway; so may we have clarification of what sort of documents will be withheld? It would seem that internal C3 documents will not be accessible to the commission. That fact alone needs justifying, because some old cases will be affected if such documents are withheld.
Clause 5 also needs clarifying. It allows the Court of Appeal to direct the commission to investigate, a power that I would expect to be used only in limited circumstances. The Home Office discussion paper raised a number of questions about how the power might be used, and about the relationship between the court and the commission when the power is used.
Will the court ask the commission to provide assistance and leave the commission with discretion as to the depth of the ensuing inquiry? Will the commission be able to pursue inquiries that may seem relevant to the case, apart from the inquiry that is asked for by the court?
Furthermore, what will he the position of an appellant in the Court of Appeal? If he is asked to comment or to give evidence to the commission while he is still in the middle of his case at the Court of Appeal, one would not expect him to have to incriminate himself. What, therefore, will be the relationship between the court and the commission?
What will happen if, after the appeal is over, the person who has been convicted wants to make further representations to the commission? Will the original reference by the Court of Appeal to the commission have an impact on that? We all welcome the setting up of the commission: it is long overdue. Certain matters of detail, however, need to be put right, as we all want the commission to work well. We want it to reduce the number of miscarriages of justice, and to allow old cases to be effectively looked at again. Just because a case is already being investigated should not constitute a barrier to presenting it to the commission in the future.
§ Mr. Michael Shersby (Uxbridge)
I welcome this Bill and support its Second Reading. I know that my constituents, a number of whom have written to me in recent years about miscarriages of justice, will he pleased that legislation has been quickly introduced—a fact on which I congratulate my right hon. and learned Friend the Home Secretary. 65 As the House knows, I am parliamentary adviser to the Police Federation of England and Wales, whose views I have naturally sought. They are a matter of legitimate interest in consideration of this important piece of legislation.
The federation, together with the Police Superintendents Association and the Association of Chief Police Officers, submitted an agreed memorandum of evidence on this subject to the Royal Commission on criminal justice. This is an example of the three police staff associations acting together to comment on a subject of enormous importance to the country and the police service.
The view of the Police Federation is that many of the recent well-known appeals have been successful after long, prominent campaigns on behalf of those convicted. The federation believes that it is difficult for a senior Cabinet Minister such as the Home Secretary to maintain a detached judgment which is focused only on evidential issues; and it is perhaps unfair to him—or one day, her—that he should be involved in the appeal process when, at all other stages, the judiciary is wholly independent of the Executive.
It is therefore a welcome step that the Bill provides that the referral of cases to the Court of Appeal in circumstances when the Home Secretary at present makes the decision should in future be undertaken by a quasi-judicial forum comprising lawyers and lay persons.
In its evidence to the royal commission, the federation said that it was difficult to see what body other than the police could carry out the necessary inquiries into possible miscarriages of justice. The management and co-ordination of a major inquiry is obviously a complex and specialist function. Detailed understanding of the initial investigation would always be required.
It seems to the federation that such expertise lies only in the police service, and that it would be unrealistic and unfair on the appellant and the prosecution to ask any other body to re-investigate a case without that expertise. It should be recognised also that, in all the cases that have given rise to the present concern, the discrepancies have been discovered and exposed in the end by meticulous police inquiries.
As far as I am aware, there has never been a suggestion that the further inquiries normally undertaken by an outside police force have been less than rigorous, or that any evidence which benefits the defendant has been suppressed. It is for those reasons that the federation supports the main objectives set out in the Bill.
The police are aware that the proposals in the Bill have aroused some criticism because of the decision to leave the investigation of cases in their hands. This criticism, where it exists, can be answered by drawing attention to the long experience of the system by which police investigations into serious complaints against the service are carried out under the supervision of the Police Complaints Authority.
The federation is not aware of any case in which it has been suggested, still less established, that such investigations have not been fair and thorough. There is therefore no reason to suspect that that will not be the position with investigations by the criminal cases review commission.
66 I agree with the views that have been expressed to me by the police. They say that, taking into account the fact that the criminal justice system has undergone major reforms in recent years, almost all the cases that have caused public concern pre-date current legislation. That point has been made by several hon. Members.
The federation believes that the creation of the proposed commission will inevitably lead to a substantial rise in the number of cases in which miscarriages of justice are alleged. It considers, however, that it is not unreasonable to expect that the number of cases that will be found to merit reference to the courts will not be significantly greater than it is now.
Consequently, the federation believes that it is sensible to rely on police investigations. It does not, however, rule out the possibility that the new commission might itself decide, in the light of experience, that it should have its own investigative arm, consisting perhaps of former police officers and others with appropriate experience and qualifications. That point was made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and by my hon. and learned Friend the Member for Burton (Sir I. Lawrence).
I can tell my hon. Friend the Minister of State that there is some concern in police circles that the cost and manpower implications for the service might have been understated. It is estimated that, at least initially, the number of cases in which a miscarriage of justice is alleged might double to about 1,500 annually. There will therefore be more references to the courts than the current average of 10 or 12 cases a year. Given increases in the case load of those proportions, there is concern that, when the Bill is enacted, it should not place extra demands on precious police resources.
The federation has told me that it believes that consideration should be given to reimbursing police forces for the cost of investigations that are carried out at the behest of the commission. I hope that my right hon. and learned Friend the Home Secretary and my hon. Friend the Minister of State, who is listening carefully to the debate, will take that request fully into account.
It is a welcome development in considering the Bill that the House knows that its provisions have the support of the Police Complaints Authority. There has been some discussion about the PCA this afternoon, so it is important to place on record the fact that it supports the Bill. The PCA called for the setting up of an independent body to investigate possible miscarriages of justice in its evidence to the Royal Commission on criminal justice. It therefore looks forward to the proposed commission, and to co-operating with it in future.
The House knows that the PCA has considerable experience of supervising investigations into alleged miscarriages of justice. These arise in three ways. The first and largest group results from complaints against police officers by convicted persons. Secondly, when the Home Office requests a police review or reinvestigation of a case involving possible police misconduct, the investigating force may well seek the added safeguard of supervision by the PCA. Thirdly, evidence which raises doubt about the safety of a conviction may be turned up in the course of an unrelated complaint investigation. I understand that it is always acted upon, even if the person concerned has not claimed to be the victim of a miscarriage. 67 A survey in July 1992 showed that the PCA was supervising 26 cases involving possible miscarriages of justice, involving 30 individuals and 15 police forces. A similar assessment in January of this year revealed 17 such cases, involving officers in 11 different police forces.
The PCA was not involved in cases such as those of the Birmingham Six and the Guildford Four, or that of Carl Bridgewater, which predated its establishment in 1985. However, the authority supervised investigations which formed the basis of successful appeals by Sam Kulasingham and Prem Sivalingham, who were convicted of murdering Tamils in east London; of Edward Browning, who was convicted of murdering Mrs. Marie Wilkes on the M50; and of the Darvell brothers, whom we have already heard about. Other important cases include the West Midlands serious crime squad, where 97 cases were referred to the Home Office and where, following a supervised inquiry, 22 officers had their sentences quashed by the Court of Appeal.
Another case that is worth recalling is that of ex-Police Constable Corley, who was accused of involvement in armed robberies and sentenced to 17 years' imprisonment. A supervised investigation, resulted in a successful appeal. The investigation subsequently revealed, however, that he had been the victim of a conspiracy.
There is a case for openness in dealing with these difficult matters. For that reason, the PCA welcomes the fact that the proposed commission will enjoy more freedom to explain its decisions than is currently permitted under the Police and Criminal Evidence Act 1984.
The PCA also takes the view that the police are best equipped to investigate cases. That is an important conclusion. The chairman of the New Zealand complaints authority recently said:
Experience has shown throughout the world that civilians cannot investigate police as well as police can. It is much easier to deceive the public than it is other police.I must agree with that view.
Home Office statistics show that the overwhelming majority of cases to be considered by the new commission do not involve accusations against police officers. I understand that it is likely that there will be only a limited number—perhaps 15 or 20—a year.
I wish the Bill well, and hope that it will have a speedy passage through Parliament. It is a major step forward, which will be welcomed by the public in general. It will help to restore confidence, which has been dented by some wrongful convictions in the recent past.
§ Mr. Jim Cunningham (Coventry, South-East)
Like many of my colleagues, I welcome the proposal to set up the criminal cases review commission. Many would say that it has taken about 25 years to take this step, and that it should have been done sooner. I should explain at this stage that I have a sore throat. I ask the House to bear with me.
The proposal to set up the commission is vital to the area that I represent in part, because the west midlands has had problems with a minority of the West Midlands police over some years. I shall not rehearse individual cases this evening, because some of my colleagues have 68 already touched on them. The House knows that we have experienced the problem of the Birmingham Six and other serious cases. An independent review commission could also investigate faulty forensic tests. I am sure that some hon. Members know exactly what I mean by that.
There is also the question of police evidence. If it is established properly, the commission will be able to go a long way towards restoring public confidence in the police. In some instances, the majority of policemen have been branded by cases that obscure the fact that only a minority have engaged in certain practices. I entirely accept what some of my hon. Friends have already pointed out: most policemen are offended when a colleague is found guild of impropriety.
As all hon. Members who represent inner cities know, such areas rely heavily on the police, and it is therefore vital to restore confidence in them. I am slightly disappointed in only one aspect of the Bill. While I am aware that this is not part of the remit that we are discussing, I feel that much more could have been done to help the police, and to ensure that they do not make mistakes, through the provision of witness protection schemes. I am referring to genuine mistakes: if witnesses are frightened, they do not always provide accurate information.
I should like to know about the composition of the new commission. I hope that the Home Secretary will find places for representatives of ethnic minorities. Most of us know that, rightly or wrongly, many members of those minorities feel that they are discriminated against in the courts and that injustices are often perpetrated. If the Home Secretary examined that problem, the commission would be given some credibility.
In 1982, the Select Committee on Home Affairs recommended that the police should be investigated by a body other than themselves. A number of organisations have been suggested. I am not too concerned which organisation should perform the task, but I should like to know why the police should do it. I take the point made by the hon. Member for Uxbridge (Mr. Shersby) that the police are probably better at investigating themselves than anyone else is at investigating them, but I should like that argument to be tested: it is often used in the House without much justification.
I should also like to know more about the composition of the proposed commission. I understand that solicitors will form a third of it, but what about the other two thirds? The Home Secretary referred to "adequate resources"; what does he mean by that? Is it pounds, shillings and pence, or is it bodies? If he is referring to staff who will be playing an investigatory role, we need to know how much money will be spent. If the commission is not adequately resourced, it will riot fulfil the functions we wish it to fulfil: it will not be able to right wrongs perpetrated in the administration of justice.
The Home Secretary pointed out that police training had improved over the years, and said that he was in the forefront in the fight against crime. I do not know about that. As other hon. Members have pointed out, many police budgets may be cut in future, while some have already been cut. If the police are to do their job adequately and not make mistakes, they must be given adequate resources; but too much lip service has been paid to that principle. 69 As I have said many times in the House, the whole question of standard spending assessments must be examined. It is easy to obscure the resources granted to the police by citing a general local authority budget, and it is possible to advance 57 arguments for each case, without spelling out the resources that are actually available.
§ Lady Olga Maitland
Am I to understand that the hon. Gentleman is not satisfied with the Government's proposal for a staff of about 60 in the new commission? Is he suggesting a staff twice that size? Will he bear in mind what that would cost?
§ Mr. Mr. Cunningham
I do not think that it is for me to say how much it would cost. I want to know how much the Government will put into the new scheme, and what they mean by "adequate resources". I think that that means a hit more than money. The hon. Lady should direct her question to Ministers.
The Government say that they are at the forefront of the fight against crime, but they have cut resources for police authorities; they have also cut legal aid. If we are genuinely to debate justice, we must deal with those facts. Funds for victim support schemes and the safer cities programme have also been cut. Many people living in deprived areas feel aggrieved when they find themselves in a court of law without adequate resources to put their case, and that is another reason for establishing the new commission.
§ Mr. Shersby
Is the hon. Gentleman aware that the country is currently spending £432 million on legal aid? That huge sum, which is dispensed by justices' clerks and through the medium of solicitors, must be seen in the context of the criminal justice system as a whole. As for the cuts to which the hon. Gentleman refers, I am sure that he is referring to ability to claim on the basis of income rather than the total cost of the scheme.
§ Mr. Mr. Cunningham
My point is that the poorer members of society experience difficulties in obtaining legal aid. I am not talking about multi-millionaires. As with any other resources, we must ask what basis should be used for the provision of resources for legal aid. The judgment should surely be made on the basis of need. Hon. Members tend to judge less on the basis of need than on the basis of how much can be returned to the taxpayer, but I do not think that justice should be based on that principle.
Although I broadly welcome the Bill, I hope that the Home Secretary will consider some of what I have said.
§ Mr. Edward Garnier (Harborough)
I begin by making some apologies. I must apologise to you, Madam Deputy Speaker, as a representative of Madam Speaker; I must also apologise to my right hon. and learned Friend the Home Secretary. to other Ministers and to the hon. Member for Blackburn (Mr. Straw) for having been unavoidably absent until fairly late in the debate. I was undertaking other parliamentary duties. I gather from those to whom I have spoken that the opening speeches were of a high quality, and it is my loss rather than that of other hon. Members that I was not present to hear them.
I also apologise to Back Benchers on both sides of the House whose speeches I was not able to hear. I am glad, however, that I have been able to hear some interesting 70 contributions in the past hour and a half or so. I am happy that, with one or two exceptions on different matters, the Bill is receiving all-party support. It seems to fit into the scheme of things in criminal justice, and it will allow a more humane and, if I may say so, effective system of dealing with complaints about the criminal justice system.
As I understand it, there are three main objectives to the reforms proposed by the Bill: first, to ensure that convictions that cannot be considered safe are quashed, leaving those that are safe to stand; secondly, to provide arrangements to ensure that doubts about the safety of a conviction can be considered and resolved at the earliest opportunity; and thirdly. to ensure a consistency of approach in criminal proceedings, so that the final decision on whether a conviction should stand is in all cases taken by the courts, whether on an ordinary appeal or following a re-examination of the case by another body. Those are perfectly unobjectionable aims, and I trust that, when the Bill becomes an Act, they will be realised.
It might be of some assistance to the House to place the Bill in an historical context. I do so with some diffidence, because I am not much of a criminal historian, and certainly not much of a criminal lawyer. I must declare an interest, in that I am a IT ember of the Bar and earn my living at the Bar when I ant not here.
I have not done a criminal case since about 1978, and all sorts of magical things have happened since then about which I am wholly ignorant, but I do know that, before 1907, there was no general right of appeal against conviction or sentence; there was simply no Court of Appeal. Miscarriages of justice could be corrected only by using the royal prerogative of mercy, on the advice of a Secretary of State. There has always been—I am not sure that it has been a happy thing—a political intervention in the criminal justice system in the recommendation for the use of the royal prerogative of mercy. As I understand it, the Bill makes proposals with regard to the royal prerogative, and has some effect on it.
The Criminal Appeal Act 1907 set up the Court of Criminal Appeal, which was given by the House and Parliament as a whole the power to correct wrongful convictions on appeal, and the Secretary of State had the power to refer cases to it. The right to request a referral lay solely with the defendant. That remained the position until shortly after the second world war, when the House passed the Criminal Justice Act 1948, which allowed a referral to be made as a result of representations from any other person. Following that Act, we have a "multi-accessed approach"—if I may use a disgusting expression—to the Court of Criminal Appeal.
The Administration of Justice Act 1960 gave the Secretary of State discretion to refer a case. The Criminal Appeal Act 1966 set up the criminal division of the Court of Appeal, replacing the Court of Criminal Appeal. The Criminal Appeal Act 1968 gave the Secretary of State power to refer cases to the Court of Appeal. In July 1993, the Royal Commission on Criminal Justice was established, which, as the House will know, is widely known as the Runciman commission. It has recently reported, and many of its recommendations have been considered in the Home Affairs Select Committee, of which until January I was honoured to be a member.
I see that my former colleague, the hon. Member for Warwickshire, North (Mr. O'Brien), who sits on the Opposition Benches, is in his place. He was removed from that Committee to sit on the Treasury Select Committee. 71 Whether he finds it as enjoyable as we used to find the Home Affairs Select Committee, I have no idea, but I can see that he is itching to tell us. No doubt in due course he will intervene to tell us about his work on that Committee.
As a result of the Runciman commission, a recommendation was made that the Secretary of State's power to refer cases to the Court of Appeal should be removed and given to a new, independent review body. The Government accepted that recommendation. Also recommended were changes to the powers and functions of the Court of Appeal.
In March and June of 1994, further discussion papers were published, dealing with miscarriages of justice and changes in Northern Ireland, and the Bill was published in February 1995. So we have had nearly 90 years of legislative development, and the Bill is but the latest development—I can say with some confidence that it will be the last for some time—in the law as it relates to criminal justice.
The House will be aware from recent newspaper reports that Lord Justice Rose, sitting, I think, in the criminal division of the Court of Appeal, deprecated the number of Bills that have emerged from Parliament in the past 10 years or so dealing with criminal justice and which have become Acts. I sat on the Standing Committee that considered the Criminal Justice Bill 1993, a Bill that was designed to correct the mistakes that had been made in the Criminal Justice Act 1991. I believe that the hon. Member for Cardiff, South and Penarth (Mr. Michael), who is sitting on the Opposition Front Bench, led for the Opposition in that Committee.
Although I was not a Member of the House at the time, I recall hearing the thoughts of my hon. and learned Friend the Member for Burton (Sir I. Lawrence) during the passage of the Criminal Justice Bill 1991. He anticipated the Criminal Justice Bill 1993, and warned other hon. Members about the unitary fine system and about doing away with previous convictions points, which later had to be corrected in the 1993 Act.
I hope that will get this Bill right, and get it right at first blush, because there has been much pre-legislative discussion about it. I trust that the Government have taken on hoard the points that were drawn to their attention after reading the commission's report, and through listening to the deliberations of experts such as my hon. and learned Friend and other interested parties outside Parliament—academics, legal practitioners and so forth —who have taken an interest in the matter.
If I may say so, the conduct of the hon. Member for Sunderland, South (Mr. Mullin) cannot be brushed aside as an inconvenient intervention of a Labour Member of Parliament. Although I do not agree with him on all sorts of issues, his work on a number of alleged cases of criminal injustice is commendable and has got us all thinking.
The hon. Gentleman cannot, of course, claim all the credit for some of the corrections to injustices that have taken place. Indeed, my predecessor, Sir John Farr, who represented the constituency of Harborough from 1959 until the previous general election, was instrumental in adding Conservative teeth to the point that was raised by the hon. Gentleman. I, as Sir John did before, had the 72 honour of representing a number of what I might call "involuntary constituents"—those who are incarcerated in Gartree prison.
It was while visiting Gartree that Sir John met a number of the Birmingham Six, and he was of great assistance to them in helping them to get their convictions overturned. For present purposes, it does not matter whether those convictions were wrong or right. What matters, for present purposes, is that it took all the work of a Member of Parliament, who lent them his photocopying machine at home to photocopy papers and so forth; the work of the press and of other Members of Parliament, including the hon. Member for Sunderland, South, to get those convictions overturned.
I have represented—I am not sure whether it still applies—some of the Bridgwater Three. I did a little work on their behalf to see that their case was drawn to the attention of the Home Office.
I am currently engaged in another case involving an involuntary constituent who has been convicted of murder. I have read the judge's summing up at the trial and the Court of Appeal judgments, and, in my view, there is a lurking doubt about the safety of the conviction in that case. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Dorset, North (Mr. Baker) is currently looking at the case, and I shall not embarrass him or interfere in his departmental discussions by mentioning the name of the case.
The lesson to be drawn from all those activities is that it seems to take a long time for anything to be done. I hope that the Bill will provide a system for much quicker resolution of complaints.
§ Mr. Nick Hawkins (Blackpool, South)
Despite all that my hon. Friend has said, with which I agree, does he share my concern that the one problem arising from the Bill, which I welcome, is the danger of great pressure from single-issue lobby groups to try to get media pressure for a cause celebre just for the sake of it? Does he agree that there is a danger that such pressure might weigh too heavily on a body such as that which is proposed?
§ Mr. Garnier
As the body has yet to be set up, I have no idea whether it will be susceptible to that sort of pressure. I intervened during the debate on the Wild Mammals (Protection) Bill on Friday to complain about legislation by postcard, and I trust that my right hon. and learned Friend the Home Secretary will be resolute in not allowing any new body to be open to such pressure.
The converse argument is that this is a democracy, and if a matter worries people, then who the hell do they write to if not their Member of Parliament or the body that deals with the matter? While I acknowledge the concerns of my hon. Friend the Member for Blackpool, South (Mr. Hawkins), I do not think that they should be paramount in our discussions.
I shall now deal with the speed at which complaints are dealt with. Figures produced by the Home Office on the number of representations about wrongful convictions and actions taken show that there were 536 in 1988, and that they resulted in two referrals to the Court of Appeal, one of which was dropped before it reached there. In 1989, there were 568 cases, and six were referred. In 1990, 731 were considered, and 20 were referred. It is interesting that, in 1989 and 1990, all the appeals were allowed. 73 Therefore, it appears that the Minister who considered those cases got it right, by referring only those that should not have resulted in conviction in the first place.
In 1991, 714 cases were considered, 12 were referred to the Court of Appeal and all were allowed. In 1992, 763 were considered, and 11 were referred to the Court of Appeal. I understand that one is outstanding at the moment. Eight appeals were allowed. In 1993, 670 cases were considered and nine were referred. One of those has been abandoned and four are outstanding. So far, three appeals have been allowed, and one has been dismissed. In 1994, 480 cases were considered, and 12 were referred. We do not yet know how many of those appeals will be allowed or dismissed.
We are debating large numbers of cases, but they are not huge in relation to the number that magistrates courts and Crown courts have to deal with. None the less, the number of cases is not small, and I trust that they will be dealt with expeditiously by the new body.
The proposed changes to the criminal appeals system have been set out by my right hon. and learned Friend the Home Secretary, and I shall not bore the House by repeating them. However, I ask him to consider the financial consequences of the Bill. I refer especially to the explanatory and financial memorandum in the Bill, and the heading "Financial effects of the Bill" in part IV. I shall not bore the House by reading out what is stated there, because hon. Members can read it for themselves.
One of the financial effects about which the Bill is silent is the issue of legal aid. I think that the hon. Member for Coventry, South-East (Mr. Cunningham) mentioned that. What are the Bill's implications for legal aid? When an aggrieved prisoner contacts his solicitor and asks him to refer his case or to get something done about it, the solicitor may act more willingly if he is remunerated. Obviously, some solicitors act, as they say, pro bono publico, and single-issue campaign lawyers have been mentioned. Plenty of good solicitors require to be paid, and why not? Will they he given legal aid for dealing with referrals to the independent criminal cases review commission?
If the review commission takes on a case and reaches a whimsical or other conclusion which may be susceptible to judicial review, will the complainant, the aggrieved prisoner, or any other interested person, be allowed legal aid for representation in the divisional court which will review the decision of the commission?
I can ask those questions in a spirit of disinterest, since I do not carry out any legal aid work and have nothing whatever to gain from the answers. Perhaps legal aid solicitors will not have anything to gain from them either, because the Minister may say that legal aid is not available. None the less, as the Bill is silent on that matter, I should be grateful if the Minister of State could deal with it, either in writing in due course or, if he has a chance to consult his officials, in his winding-up speech.
A number of other hon. Members wish to contribute to the debate, so I shall content myself by welcoming the Bill's broad overall aims. I trust that, as appear; likely from the debate so far, it will have a reasonably uncontroversial passage, and that its Committee stage will he short. The sooner the commission is set up and in action, the better.
§ 7.7 pm
§ Mr. David Trimble (Upper Bann)
Like other hon. Members who have spoken, I welcome the Bill. Naturally, as I represent a Northern Ireland constituency, the first welcome aspect of the Bill is that it covers Northern Ireland and is, therefore, what occurs only too rarely —legislation that covers Northern Ireland properly. The fact that provisions relating to Northern Ireland can be included in the Bill with so little difficulty gives the lie to those who say that there is a particular difficulty in legislating for Northern Ireland in the normal way.
One of the other excuses with which we are presented for not legislating for Northern Ireland through a proper Bill is the so-called need to maintain what is laughingly referred to as the integrity of the Northern Ireland statute book. I am glad that the Minister has the grace to smile at that reference.
I note that the Bill will amend five Northern Ireland Orders in Council. We have been told in the past that that cannot be done because it would somehow affect the integrity of the Northern Ireland statute book. I am delighted that we are legislating for Northern Ireland properly.
I also welcome the Bill because of its central provision—the establishment of a criminal cases review commission. I am glad that that single commission will be established to cover England, Wales and Northern Ireland. The Northern Ireland Office published a consultation paper suggesting that separate provision be made for Northern Ireland. That proposal did not commend itself to me and my colleagues for a number of reasons. Northern Ireland is a small jurisdiction with only a limited number of people involved in the legal profession. There are only 10 High Court judges. Only a limited number of people are involved in criminal work, whether at the Bar or as solicitors.
In any small profession, everybody knows everybody else. That makes it difficult for people to be genuinely objective when they are asked to consider the possibility that their friends or colleagues have made a mistake. They also tend to have convinced themselves that they are running a good ship and that they are all fine chaps—unlike those terrible people across the border in England where, because there are so many of them, rogues might get into the profession and all sorts of mistakes be made. A little esprit is built up among the members of a small profession, which is not especially healthy.
Some of that attitude exists also in the one jurisdiction in the United Kingdom that is not affected by the Bill, which is Scotland. My connection with the Scottish legal profession is limited. The Minister has extensive connections with it and I think that he will confirm that it suffers from the same failing of being fond of congratulating itself, but not so good at looking objectively at itself.
I am glad that there is the possibility of outsiders looking into the profession objectively. That raises the possibility of people involved in the legal profession in Northern Ireland contributing to the work of the commission in England and Wales. They will he able to contribute an element of objectivity.
Another reason why we were not enthusiastic about separate provision for Northern Ireland is that anything to do with the Northern Ireland Office is becoming 75 increasingly tainted by sectarianism. Indeed, when the Northern Ireland Office sets up any body, the first thing that comes into its mind is the political and religious affiliation of the person involved. If there were to be a separate, single commissioner for Northern Ireland, as the Northern Ireland Office suggested, we know that the very first consideration in the minds of Ministers making the appointment would be political and religious affiliation. The same would be the case were there to be a separate Northern Ireland commission.
In that undue sectarianism that the Northern Ireland Office is injecting into every part of political and social life in Northern Ireland, there is the evil influence of the Anglo-Irish secretariat. I hope that, when appointments to the commission are made, the Home Office, the Prime Minister and the Cabinet Office will be careful to ensure that the advice that they receive from the Northern Ireland Office is not tainted—as almost inevitably it will be—by the machinations of the secretariat, whose influence extends into almost all aspects of the work of the Northern Ireland Office.
I note that the Bill contains a provision to appoint to the commission persons with experience of the legal system in Northern Ireland. The relevant clause includes Northern Ireland legal qualifications among the criteria for those to he appointed to the commission. However, I have not seen any reference, or heard any statement by Ministers, on whether they intend to appoint one, two or any people with knowledge of the legal system in Northern Ireland. I hope that the Minister will deal with that point when he replies. We need some indication of the extent to which people with experience of the legal system in Northern Ireland will be involved in the work of the commission.
I want to deal now with some of the substantive provisions in the Bill. Clause 2 provides for the new test that the Court of Appeal will use in determining whether to quash convictions. A number of hon. Members have already referred to that. I agree with the point made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) when he referred to the word "unsafe". I hope that that word will be given a wide interpretation and that the court will take the view that a conviction is unsafe if it "may be" unsafe. I hope that the exclusion of the words "may he" from the clause will not narrow the interpretation. That is an important point. The Minister will have noted the concern expressed by Justice that it will have the effect of narrowing the provision.
I was impressed by the points made by the hon. and learned Member for Burton (Sir I. Lawrence) when he gave his exegesis of clause 2. I want to hear more of his thoughts. He made an interesting contribution. Indeed, he whetted my appetite when he referred to the article by Sir John Smith. I hope that we will be able closely to consider such matters in Committee. Having said that, I support the broad thrust of clause 2, which replaces the various different overlapping terms in earlier legislation with a single test—provided that that single test is expressed broadly enough to, if anything, widen the jurisdiction of the Court of Appeal.
Clause 13 sets out various criteria on which the commission can refer cases to the Court of Appeal. I understand and agree with the thinking behind the phrase "a real possibility", in the commission's view, that the 76 court will reopen a conviction. However, I am not as happy with the qualification that the evidence or argument on which that real possibility must be based must be one that has not already been raised. It is unnecessary to limit it in that way.
I understand the thinking behind it; it is a thinking that pervades so much of the criminal justice system. Rather than looking at the merits of a particular case, we look at the procedures and the way in which things have been done. A former colleague of mine characterised it as the criminal trial as a game. We look to see whether the lawyers and other persons acting for a defendant did the right thing at an earlier stage: for example, if they had the opportunity to raise a point, but failed to do so, the point could not be raised subsequently.
Clause 13 provides that, if the point, the evidence or the argument has been raised in the court or on appeal, the commission cannot use it as a basis on which to refer the case. That is unnecessarily restrictive. The point may have been raised, but not adequately; or it may have been raised in connection with some other points and the cumulative effect of the commission looking at it again may result in its deciding that the case should be referred to the Court of Appeal.
I thought that the thinking behind the changes in clause 2 and in other parts of the Bill was to widen the basis on which the commission could operate and to remove unnecessary technicality from its approach.
§ The Minister of State, Home Office (Mr. David Maclean)
Is the hon. Gentleman suggesting that, if it is exactly the same evidence as was raised before, and which the Court of Appeal had had the opportunity to consider, and there was nothing new, different or revised about the evidence, the commission should again refer back to the Court of Appeal, perhaps hoping that there might be different judges? What would be the point of that?
§ Mr. Trimble
My point is that the commission should not be trammelled or restricted. It should be open to the commission to exercise its judgment without any technical limitation. The Minister rightly says that in the sort of cases that he mentioned we would not want to refer the matter back to the court. However, there may be circumstances in which a point has been raised before, but when the commission looks at it again it thinks, "Ah, this point should be considered again." Those cases may be exceptional, but the commission should be free to do that if such cases occur. The argument is to give the commission the flexibility and the power to act if it considers it desirable to do so.
One of the main points in the debate involves investigations and how they should be conducted. There has been quite a bit of disagreement on the Bill's provisions, which, in effect, require the commission to use existing police forces for investigations. I understand the concern that has been expressed and that there will be problem in relation to public credibility, but there is much merit in the Bill's provisions.
The hon. Member for Uxbridge (Mr. Shersby), who acts as adviser to the Police Federation of England and Wales, said that only the police have the necessary expertise. That is valid, but there is more to the Bill's merits than that. It would not be desirable to create a special body of detectives who were employed by the commission so that it had its own police force to undertake investigations. That body would be an 77 anti-police police force, it would be viewed by police forces elsewhere as a special anti-police unit, and it would create a series of new institutional loyalties and jealousies and a defensiveness on the part of police forces elsewhere which would be inappropriate.
The hon. Member for Sunderland, South (Mr. Mullin) said that, after initial resistance, there had been a sea change in approach in the Court of Appeal in England. He is right on that. That change was welcome. A sea change has taken place in the approach of the House and of the Government to these issues—we should acknowledge that. We want a sea change in the culture and attitude of a number of detective forces. We want to open them up to new thinking. They will find it easier to do that if police forces are involved in investigations.
The point has been made that the police may not be especially effective in investigating the police, but we must consider what the commission will do in its approach to the matter. It can direct the inquiry. It needs to have available to it persons who are in a position to assess the quality of the investigation that a police force is undertaking. The commission may direct a particular police force to undertake an investigation; it can give some directions and so, in a sense, control that investigation. It needs, however, to have on its own staff persons who are in a position to assess the quality of that investigation so that, if it has not been conducted properly, they can take it away from certain police officers or a police force and place it elsewhere.
I notice that the Home Office consultation paper mentions in paragraph 83 the possibility of the commission employing among its staff persons with experience of police work and police investigations. This is perhaps the line that people should consider. On its staff, the commission should employ police officers with experience in these matters. They would not conduct investigations, but they would be able to advise the commission on the conduct of investigations that the commission has placed with police officers.
§ Mr. Maclean
I confirm that it is the Government's view that that is a sensible way to proceed. We want three or four serving police officers to work on the commission as directing staff, fulfilling the very role that the hon. Gentleman has described.
§ Mr. Mr. Trimble
I am delighted that the Minister has confirmed that that is the way in which the commission will operate. It is the best way to go. It provides flexibility. To proceed in that way will be a more efficient use of resources; it will be better than the commission employing its own police force. It reinforces my earlier point about the need for a broad and flexible approach on the matter. I am delighted by what the Minister said.
In our response to the consultation papers, we expressed concern about the Bill's provision that enables the commission to consider any case immediately after the 28-day period for appeal has passed. We suggested that the commission should, in deciding whether to investigate a case, have regard to the failure to appeal or to apply for an extension for time to appeal. Legal representatives of an accused person should not regard going to the commission as the easy way out; they should not do that instead of going to appeal. Hon. Members should he concerned about that and I hope that the 78 commission will be concerned about it, too. I was pleased to note that Justice voiced the same concern in its suggestions on the matter.
Hon. Members have referred to the Police Complaints Authority and the Independent Commission for Police Complaints for Northern Ireland. Neither the Bill's provisions nor Ministers' statements show what the relationship will be between the complaints bodies and the commission. It is obvious that an alleged miscarriage of justice could give rise to a complaint to the Independent Commission for Police Complaints for Northern Ireland or to the Police Complaints Authority in England and Wales; it could also, however, lead to an application to the commission. What will then happen?
In the Home Office consultation paper, it was suggested that there might be informal arrangements between the two bodies to co-ordinate inquiries and to prevent overlap. I am not sure that that is sufficient. It may be necessary to consider further what the relationship will be between the complaint bodies and the commission. In considering the two, one should regard the commission as the superior body. If necessary, it should be able to have referred to it a case that is proceeding simultaneously through the two complaint bodies.
If I may stray a little into purely Northern Ireland considerations, I am not sure that it is desirable even to have a police complaints body if we have the commission and an independent police authority, which I hope will continue, part of whose function should be to examine whether the police are dealing adequately with cases. Far too many overlapping jurisdictions are being created. A little bit of rationalisation may be called for.
I referred earlier to Northern Ireland concerns and to the comment by the hon. Member for Sunderland, South that, a number of years ago, a sea change occurred in the attitude of the Court of Appeal in England and Wales. I regret that a similar sea change has not taken place in the attitude in Northern Ireland courts. In recent years, only one major case has been referred to the Northern Ireland Court of Appeal—what is known as the UDR Four case. I regret that, a couple of years ago, the judgment of the Northern Ireland Court of Appeal in that case showed the attitude of mind that had been present in the Court of Appeal in England before its sea change in attitude.
That attitude tends to represent any miscarriage of justice simply as a technicality. It says, "These men are really guilty, but we are having to let them out because there has been some error by the police officers." The Court of Appeal in Northern Ireland contrived the result by quashing the convictions of three of the people involved, but not a fourth— that of Neil Latimer. He is just as innocent as the other three, but he remains in prison simply because the Court of Appeal has not been able to face up to the fact that, as in the cases in England and Wales, the police had decided to "improve" the evidence.
The hon. Member for Sunderland, South referred to the way in which the police sometimes appear to conduct sessions where they rewrite all their notes. Sometimes, senior police officers are involved in that. Lawyers acting for the UDR Four are convinced that exactly the same phenomenon occurred and that, at some point, the interviewing officer sat down and decided to rewrite the notes. Some of the rewriting was revealed by electrostatic document analysis—ESDA—testing and led to the convictions of three of the four being quashed. Unfortunately, justice has not been fully served. 79 I understand that with regard to the latest application to the Secretary of State for Northern Ireland to have the case of Neil Latimer referred again to the Court of Appeal, the Secretary of State has said that he is minded that the doors have not yet closed and that he is prepared to consider any fresh information that may be relevant. I am glad that he has said that. However, I fear that this case would fall within the category mentioned by the Home Secretary in his speech. He said that there might be cases in which new evidence would, for some reason, be inadmissible and that that would be an appropriate situation for the use of the royal prerogative. I hope that that possibility will be looked at in this context, because it may be the only way in which we can solve a serious miscarriage of justice in Northern Ireland.
Interestingly, the UDR Four case is the only case in Northern Ireland so far in which there has been serious disquiet about conviction. That is somewhat ironic. The cases of miscarriage of justice in England and Wales have involved jury decisions. The Diplock courts in Northern Ireland, with a single judge, have been, with this solitary exception, free from mistake. I have often commented to people who criticise the Diplock single-judge courts that I find it strange that people concentrate so much on them, when, by and large, a reasonably good quality of justice is delivered, yet ignore the 98 per cent. of criminal cases in Northern Ireland which come before single-judge magistrates courts.
We have had single-judge courts in Northern Ireland since 1935. All magistrates courts are presided over by resident magistrates. In resident magistrates courts, we do not get the same quality of justice as we have had in the Diplock courts. My experience of magistrates courts is limited. I had a short, although distinguished, criminal record. Apart from that, my only other acquaintance with magistrates courts was appearing once as a witness in the context of the protests against the Anglo-Irish Agreement.
I remember that, when the police disclosed to us the police witness statements about the evidence that would be given in court, I and everyone else who read them fell about laughing because the police evidence was so laughable. However, I had reckoned without the magistrate concerned—no names, no pack drill. I am told by those who practise regularly in the magistrates courts that he has never been known to disbelieve the police. That is the quality of justice that occasionally occurs. For that reason, I am delighted that the Bill extends to summary cases—magistrates court cases—the power to have miscarriages of justice remedied through a referral back of the case. A clear gap in our legislative provision has now been remedied.
As I have said, we welcome the Bill and we shall support its principle. The opportunity may arise to look more closely at some of the points of detail that have been mentioned.
§ Lady Olga Maitland (Sutton and Cheam)
May I give a warm welcome to this extremely important Bill and say what a pleasure it is for me to follow my hon. Friend the Member for Upper Bann (Mr. Trimble), who is accompanied here in the Chamber by my right hon. Friend the Member for Lagan Valley (Mr. Molyneaux)? Not only 80 do I have great respect for them both, but I welcome the fact that the Bill encompasses Northern Ireland. I welcome the fact that we are not going down the same old route of having to provide for separate legislation. The Bill is a good example of Ulster being seen as part of the United Kingdom—a position with which I feel totally happy and comfortable.
I do not accept the criticism that there has been undue delay with the Bill, which required careful thought and planning. It was not a matter of the Government at any time objecting to its principle; that was not so. There has always been deep and grave concern about miscarriages of justice. We have never been afraid of taking a good look at sacred cows. I would not like there to have been a knee-jerk reaction just to satisfy critics. That would have forced us to make decisions in haste which, on closer analysis, we might later have regretted because we had not paid sufficient detail to some aspects.
Our system of criminal justice results in relatively few convictions of the innocent, but one conviction of an innocent man or woman is one too many. By the same token, it means that somewhere out there, there are guilty men and women at large. We are keenly aware that, somewhere, the bombers of Guildford and Birmingham are still free. They have not been brought to justice, and we do not know whether they ever will be. I only hope and pray that they have something of a conscience which will burden them to end of their days, but I wonder.
I accept that there has been a debate over quite a time and I accept that, 14 years ago, the Select Committee on Home Affairs agreed that we should eventually take a course of action similar to that proposed in the Bill. I refer to a quotation from the Select Committee's 1982 report on miscarriages of justice. In recommending that a new review body should be established, the Committee said:
Our main concern is that those cases which, following the initial sifting process, are thought by the Home Office to contain some substance, and in particular those involving a custodial sentence, should receive as thorough and expert a scrutiny as possible. We are convinced that there is a strong argument in favour of the introduction of an independent element at this stage, and that it is unreasonable that the Home Secretary should be expected to decide whether to grant a free pardon or to remit a sentence on the advice of his officials alone.It was not only the Select Committee that raised those important points. The law reform group Justice made its own considerations. In a response to a Government reply to the Home Affairs Select Committee, it said:
We accept that such a review body will not be infallible and will not satisfy everybody; we doubt whether this will ever be possible whatever system is devised. However, we believe that the present procedures are not capable of providing the requisite qualities of thoroughness, impartiality and independence that an inquiry into a serious complaint of miscarriage of justice requires. In his report into the investigation of the Preece case, the ombudsman stated:—'A miscarriage of justice by which a man or woman loses his or her liberty is one of the gravest matters which can occupy the attention of a civilised society. And it seems to me that when an unprecedented pollution of justice at its source is discovered, quite an exceptional effort to identify and remedy its consequences is called for.'That is exactly what the Government are doing.
The detailed provisions for the establishment of a criminal cases review commission had to be carefully prepared and subject to wide consultation, hence the requirement for Lord Runciman to examine the proposition and to make considered representations in his report for the Royal Commission on criminal justice. 81 Submissions were sought and many bodies and people were interviewed. Further consultations have meant that the Bill goes further and goes into more detail than envisaged by Lord Runciman. The commission will, for example, be able to reverse summary cases dealt with by the magistrates court. A shoplifter will be able to have his case referred to the Court of Appeal or Crown court rather than seek a royal pardon, which is not satisfactory.
We must be wary of the pitfalls. On 26 October 1993, speaking in a debate in the other place on the royal commission report, Lord Windlesham warned that miscarriages of justice are
easy to exploit for various purposes, including the pursuit of political capital.Lord Ferrers, then Minister at the Home Office, reminded the House of the need to
strike the right balance between, on the one hand, the public interest in the detection and punishment of crime, and, on the other hand, the individual interests both the of defendants and of the victims of crime."—[Official Report, House of Lords, 26 October 1993; Vol. 549, c.779-81.]We all agree that we must ensure that our criminal justice system operates fairly if we are to maintain public confidence in it.
The system has worked to increase the chances of the guilty being convicted through the reform of the right to silence, the establishment of a DNA database and changes to identity parade procedures to stop them being abused. It is equally important, however, that only the guilty are convicted. The care with which Bill has been prepared will ensure a fair and efficient system to correct miscarriages of justice.
My right hon. Friend the Member for Mole Valley (Mr. Baker) was responsible, as he said earlier in the debate, for setting up the process to establish the commission for criminal appeals. He did so at a time when the public mood was at fever pitch, only hours after the release of the Birmingham Six.
I remember that day very well, because I took part in "Question Time" and the atmosphere in the studio was electric. The mood was rather confused, however, because, although everyone was quite rightly outraged about miscarriages of justice and about the fact that things had gone seriously wrong, another passion, which was promoting Irish republicanism, was blurring the edges, and those who felt it gave the Birmingham Six a heroes' welcome not just on their release but because they were pushing another cause. In a sense, that was unfortunate, because if there has been a miscarriage of justice, an individual, no matter who he is, is entitled to have the best justice that the country can provide.
It had been found that, among other things, the convictions of the Birmingham Six had rested on uncorroborated confessions. Concern was expressed about faulty, fabricated or withheld evidence, biased comments from judges and the reluctance of the Court of Appeal to overturn jury verdicts.
Today, we must put everything in its correct perspective. Time has not stood still. In recent years, the standards required of the police have been tightened. The codes of practice in the Police and Criminal Act 1984, commonly known as PACE, have virtually eliminated the risk of fabricated confessions. As my hon. and learned Friend the Member for Burton (Sir I. Lawrence) pointed out in his excellent speech, nowadays police interviews 82 are tape-recorded. Those codes of practice have served their purpose because allegations against the police have dropped greatly.
None the less, if there is any error of doubt about how evidence or confessions were obtained, the conviction must be set aside. The strength of our system is that we will still admit that an error could have been made, even after the last appeal. I cannot vouch for any other country in the world that sustains our same enormously high standards of justice or goes to the same length of trouble as we do to get things right.
§ Mr. David Ashby (Leicestershire, North-West)
What does my hon. Friend have to say about identification evidence?
§ Lady Olga Maitland
I will not comment on that, because it should be considered in another context.
It was quite right for the Home Office to refer back to the Court of Appeal the case of Paul Hill, who was convicted of the IRA murder of 21-year-old Private Shaw in west Belfast. The Lord Chief Justice of Northern Ireland, Sir Brian Hutton, concluded that the conviction was unsafe and unsatisfactory. In his 42-page judgment, however, he said that Mr. Hill's credibility was seriously undermined because, on the balance of probabilities, a number of interviews that he claimed took place at Guildford police station never happened.
Sir Brian added that he felt that the Surrey police officers' evidence at the Belfast trial was probably true. However, the only evidence against Mr. Hill was a confession that he signed while under arrest at Guildford police station in connection with the Guildford and Woolwich IRA bombings, in which five people were killed. Sir Brian said he quashed Paul Hill's conviction because it rested on a fundamental principle of law that
a civilised society cannot permit a confession—even if true—to be obtained by improper methods.He added that it was "very probable" that Police Constable Gerry Queen fired an unloaded revolver through the hatch of a cell door at Guildford police station and that that "clearly constituted inhuman treatment."
It should be made clear that rendering a conviction unsafe does not necessarily exonerate the appellant; rather, it is the means of setting aside a conviction where there is the slightest doubt about the evidence. I pay tribute yet again to the fact that this country has the courage and the culture to bend over backwards to right a wrong. Whenever there is a sliver of doubt, a case is thrown out.
§ Lady Olga Maitland
In the end, the cases were reviewed and the verdicts were overturned, so how can my hon. Friend possibly question the outcome?
I welcome the establishment of the independent criminal cases review commission, because the current system is not entirely satisfactory. At present, we have a gamekeeper-poacher relationship, where the C3 department of the Home Office serves as the last resort for alleged miscarriages of justice. It can never be entirely 83 satisfactory for a body to be responsible in a quasi-judicial role for such cases, while at the same time being responsible for law and order and the police.
The Home Office, acutely conscious of the sensitivities involved, has tended to err on the side of sluggishness. As Lord Runciman observed in his report:
The scrupulous observance of constitutional principles has meant a reluctance on the part of the Home Office to inquire deeply enough into the cases put to it… We do not think that is likely to change significantly in the future.The Home Office and the Northern Ireland Office sift through about 750 cases a year, of which, on average, four or five are finally referred to the Court of Appeal. Only a few attract public attention or become causes celebres, such as the Birmingham Six, the Guildford Four and the Maguires. The rest range from a conviction for possessing a television without a licence or driving without insurance to the most serious offences such as rape, armed robbery or murder.
The most recent references to the Court of Appeal, leaving aside the Guinness trial convictions of Jack Lyons, Ernest Saunders, Anthony Parnes and Gerald Ronson, arc a fairly typical list of cases concerning people convicted of serious offences and serving long sentences. Those include Paul Malone, currently serving 15 years for robbery; Sammy Davies, convicted of rape; and Colin Wallace, convicted of manslaughter.
A clear example of miscarriage of justice was the case of Stefan Kiszko, who was convicted of raping and murdering a girl in Derbyshire. He spent many years in prison but always protested his innocence. The Home Office took up his case and found that forensic evidence was unreliable. Since he was first tried nearly 20 years ago, forensic science has developed a great deal, with many safeguards.
§ Mr. John Gunnell (Morley and Leeds, South)
In the Stefan Kiszko case, it was found that forensic evidence had been withheld by the police. That is why that case was overturned.
§ Lady Olga Maitland
That could be one element of the reason, but I understand that subsequent forensic science has given us another interpretation of the evidence.
Judith Ward was convicted in 1974 of a number of terrorist offences, including murder. In 1991, her case was referred by the then Home Secretary, my right hon. Friend the Member for Mole Valley, after the scientific evidence was put in doubt by the discrediting, in another case, of evidence given by the forensic scientist concerned and after an eminent psychiatrist found that Judith Ward suffered from a mental condition that led her to fantasise and then confess to crimes that she had not committed. In June 1992, the Court of Appeal quashed all her convictions and she was freed having served 17 years in prison for crimes that she had nothing to do with.
I congratulate the Government on being supportive in the proposed establishment of the criminal cases review commission, setting aside a budget of more than £4 million for a staff of up to 60 people and a proposed body of 11. That is certainly no half-hearted measure. Compare that with the Home Office C3 department, which has a staff of 19 and a budget of some £750,000 a year.
84 Labour Members suggest that that figure and the scope and scale of the commission are insufficient.
§ Ms Jean Corston (Bristol, East)
The hon. Lady has given a litany of cases where miscarriages of justice have been put right and referred to cases on which people are currently campaigning. Does she support the attempt by the family of James Hanratty to prove that he was wrongly convicted?
§ Lady Olga Maitland
I cannot answer that question because I have not studied the case. If there has been a miscarriage of justice and suitable evidence comes to light, I feel absolutely confident that the case will be referred to the Court of Appeal.
If Labour Members are not satisfied with the fact that the commission will have a staff of 60 and a budget of £4 million, it would help the House if they said what they envisage. What do they mean by "inadequate resources"? Would they double the number of staff and the budget? They must be realistic. It is all very well to demand that more resources be given, which is the common cry of the Labour party, but it would be helpful if Labour Members said what budget they would propose.
§ Mr. Mike O'Brien (Warwickshire, North)
The hon. Lady does not seem to be aware that the Police Federation of England and Wales has made it extremely clear that the commission's budget is inadequate if it does not include funding to pay for the officers who must carry out the investigations, for whom substantial extra funding will be needed. The nature of the investigations and the employment of officers mean that the overall funding required will be much higher than the sum suggested by the Government.
§ Lady Olga Maitland
The hon. Gentleman's point sidesteps the whole issue. What I am trying to get out of the Opposition, but which is clearly not forthcoming, is whether they will spend more money on the commission and, if so, how much. They seem to have made yet another open-ended spending pledge. I do not resent spending money on justice for everybody, but we should know exactly where the money will come from and what it will be spent on.
§ Mr. Jim Cunningham
I queried how the commission will be funded. If the hon. Lady remembers, I spoke of cuts in legal aid. Is she saying that the money saved from cuts in the legal aid budget will be used for the new review body?
§ Lady Olga Maitland
I do not think for one minute that a sensible approach to handling the legal aid budget can be equated with funding an expansion over and above what the Government propose for the new commission. It is nonsense for the hon. Gentleman to try to suggest that we are robbing Peter to pay Paul. No appellant will be deprived of the appropriate means to secure justice for himself. We are concerned that genuinely wealthy people are claiming support from the legal aid budget to which they are not entitled. There is no question of anyone without resources being unable to get funding for his or her legal defence.
§ Mr. Mike O'Brien
I am grateful to the hon. Lady for giving way twice. She said that no one without resources will lack legal aid. Has she had conversations with Ministers in which it has been suggested that legal aid 85 will be made available for those who are deserving because they have no other resources, or does she not know what she is talking about?
§ Lady Olga Maitland
I have had constant discussions with my colleagues. My hon. Friends and I are all well aware that those who need it will get the legal support and aid that they need. We are concerned about extremely wealthy people who claim legal aid while living in luxury homes with huge back-up when it is obvious that they have the means to pay for their own defence.
I have no doubt that the commission will initially carry a heavy case load, investigating in a broader way and perhaps in greater depth some cases that are handled by the Home Office. I recognise that inquiries will be speeded up. Apart from big and complicated cases, the average time taken to complete consideration of a case is 36 working days. The commission's make-up is crucial to guarantee public confidence. Its independence and the selection of those who will serve on it are sacrosanct. I agree that it is appropriate that there should be a strong lay input with, as was pointed out in the royal commission report, knowledge and experience of any aspect of the criminal justice system. That will provide for plain common sense backed by an expert knowledge in a particular subject.
I suggest, however, that great care be taken to ensure that there is no danger of any pressure group, such as Liberty, making its presence felt in an area that must be completely apolitical. To err on one side or the other would seriously affect public confidence in the commission. We want people of integrity, probity, judgment and clear-sightedness; we want no whisper of politics, which would turn what should be a scrupulously independent, fair-minded body into a lobby organisation for one group or party or the other. I view that matter with the greatest concern. I trust that, when the body is set up, those independent standards will be maintained both now and in the future.
Some hon. Members have called for an in-house investigatory unit. I regard that as neither practical nor realistic. First, the work load will vary each year. No investigative unit could have all the necessary expertise for every sort of case. It is far better to bring in the appropriate investigators and supervise them from the centre, which has already been done by the serious fraud squad, who bring in accountants. The organisation could bring in forensic scientists or accountants, although it may not need such expert help all the time. In general, different branches of the police force will be used. They have an excellent track record on investigating alleged miscarriages of justice.
I am concerned about remarks made by Labour Members throwing doubt on the integrity of the police force. We heard unworthy gibing and querulousness from Labour Members, suggesting that our police force did not possess the standards of integrity that we demand of it. I accept that occasionally things fall down but, by and large, the police force has an excellent track record. I did not like the complaint of the hon. Member for Walthamstow (Mr. Gerrard) that cases referred to the Police Complaints Authority are generally not taken up. Such an insidious statement is not worth listening to—but we have heard it.
86 It has been suggested that journalists should be among the investigators on the commission. I am proud of my profession as a journalist, but I would never for a moment suggest that it is the right profession to serve on the commission. Labour Members said that they wanted campaigning journalists on the commission, and mentioned Paul Foot. I respect Paul Foot's powers as a writer, but I cannot say that I would feel particularly happy or confident that someone with a clearly defined left-wing bias in his approach to life could deliver a service with which I would feel totally comfortable. We must be scrupulously careful about the make-up of the commission and how it executes its powers.
I am proud that the Bill has come to the House and proud that we in this country will leave no stone unturned in our determination to bring justice for all. It should reassure the public that their last resort appeal will be most carefully considered, and any miscarriage of justice rightly rectified.
§ 8.2 pm
§ Mr. John Gunnell (Morley and Leeds, South)
I welcome the Bill. This is the only such occasion that I can recall when every contributor has started by welcoming the Bill, which is important and has clearly been needed for some time. It meets the public need for a commission. The Opposition want it to be set up and operating as soon as possible, as there is much work to be done.
It is important to set up the commission because the most recent criminal justice Act, the Criminal Justice and Public Order Act 1994, ended the right to silence and increased the possibility of miscarriages of justice rather than decreased it. Some of the safeguards suggested during the Committee stage of that Bill would, had they been accepted, have reduced the possibility of error. Regrettably, they were not accepted. I hope that cases going through the courts will be monitored to see whether ending the right of silence has achieved what the Government claimed it would—in terms of convictions where convictions were proper—or whether, as we suggested, it has increased the danger of miscarriages of justice.
In welcoming the Bill, I want to focus on those aspects of it which are not quite right. I do not believe, as has been suggested, that the Committee considering the Bill will be entirely without controversy, as some changes are needed. I hope that the Government will give serious consideration to those issues.
I have four serious concerns. My first worry involves the grounds of appeal. Will the grounds of appeal still be too narrow to cover some of the cases which should be considered by the commission?
My second concern involves the extent of the commission's powers. Will it be able to obtain all the evidence that it needs to be able to investigate a case properly?
Thirdly, I am concerned about the independence of any investigation when those conducting it are the same people as those responsible for the original decision. I would like to know the circumstances in which the same police force would be used and the circumstances in which another police force would be used to investigate a particular conviction. I would also like to know the 87 circumstances in which it would be right for the commission to have recourse to different procedures and to use different people to do the job.
Fourthly, we must always be concerned about the timing of procedures. There is currently an enormous backlog of many people who have been in prison for a long time.
Those four points have all affected a case in which I have been involved. I shall follow the pattern set down in the debate and not refer by name to the people who believe that they have suffered a miscarriage of justice. I shall refer to the case in a less overt manner. The son of two of my constituents was convicted in December 1987 of having murdered his fiancée in September 1986. He was given a life sentence and has been in prison ever since. He never accepted the result. From the moment of his arrest, he has always protested his innocence.
Before the trial, it was suggested to the man that, given that he was convicted of murdering his fiancée, if he suggested that it had happened in a moment of passion, it could be regarded as manslaughter and he would not be sentenced to so many years. Certainly, if he had at any time accepted his guilt, it is unlikely that he would have served the time that he has already served, the events having taken place more than eight years ago. He has already been in prison a long time, but he has always protested his innocence.
There are genuine grounds for believing that the conviction may be unsafe. I should need to hear the results of a full investigation before making a judgment. The grounds for having an investigation and having recourse to a commission of the sort described are straightforward. The case has been continuing for so long that I took it over from my predecessor, Lord Merlyn Rees, who was himself a distinguished Home Secretary. For the first five years of the case, Merlyn Rees did his best to represent the man and sought, through the relevant procedures, to obtain an appeal. The appeal was turned down because, although the parents had engaged a private detective who had produced a massive and detailed report of the case and had conducted many interviews, lawyers felt that the private detective's report did not amount to new evidence. Therefore, the case never went to the Court of Appeal.
Soon after I won the seat at the last general election, there was an approach from the C3 department of the Home Office after the son of my constituents had been listed by Liberty as a person whose conviction was unsafe. Since then, I and my office have spent many hours examining the evidence and considering possible ways of getting the case reopened. For a long time, we did not produce anything that could be described as new evidence. The reason for that is intrinsic to the case, and therefore it is an important aspect of considering the grounds on which an appeal can be heard.
If the police rapidly reach a conclusion in a murder case and never investigate any alternative interpretations of why the death occurred, it is extremely difficult later to follow up other possible interpretations and other possible leads that are consistent with the opinions of the person who has already been convicted. There is thus an inherent difficulty in dealing with a case which appears to hinge on the fact that the officer in charge of the case reached 88 a certain conclusion about the identity of the person who committed the crime extremely early in the investigation, and never wavered in his conviction.
It is of interest that the same officer, on being transferred to a different force, was in charge of a rape case in which he formed an equally rapid conviction; the person about whom he had formed that conclusion was arrested and imprisoned, and someone else then came into the police station and confessed to the crime. That may simply be coincidental. It may simply be that, in one of the two cases in which the officer reached a rapid conclusion, the person who was in prison had a lucky break, as people do not often confess to a rape when someone else is likely to be in the dock for it. It would have taken a similar sort of break for my constituent's son to have any evidence with which to overturn the strong conviction of the officer in charge of the case. That makes it especially difficult to assemble new evidence in those circumstances. In recent months, however, with the help of a barrister, possible grounds of appeal have been investigated, and a fresh set of advice on appeal has been obtained.
That brings me what I regard as a second important aspect—ensuring that the commission has the right powers to obtain transcripts. There has been one great handicap in the case. We have gone over the evidence, much of which centres around the time of death. The time of death in that case was uncertain because, when the body was discovered, the death was not immediately thought to he a death in suspicious circumstances. The body was therefore refrigerated for 24 hours before there was any investigation of the body to discover the cause of death.
The forensic evidence of Dr. Alan Usher, a noted pathologist in his time, is that some of the alleged conclusions about time of death simply could not properly be drawn because there had been that great gap between death occurring and the corpse being examined, and the refrigeration process had made it impossible to determine the evidence in quite the way in which it was subsequently used.
We do not know, because we have not obtained a transcript of the trial, whether conviction hinged on the time of death. I believe, therefore, that it is important to obtain a transcript. As the case never went to appeal in the first place, however, there is no written transcript; it exists only in shorthand notes. One of the things that I am very worried about is that, since the time when we first asked for those shorthand notes to he preserved, some of them have been destroyed, which I believe should not have happened when a Member of Parliament had expressed a specific interest in the case.
The control of the taking of transcripts in court falls within the Lord Chancellor's domain. I am anxious that the new commission should be in a position to obtain the transcript in a case of that kind, where no transcript of the trial has been obtained. I ask the Minister to tell me in his reply whether the commission will have the powers to obtain a transcript.
I was told that I might obtain a transcript if I were prepared to pay for it myself. It was estimated that the transcript would cost more than £3,200. I was told that it could not count as office costs, which would have meant that it would in effect cost less due to the effect on Inland Revenue payments. It was therefore a case of obtaining legal aid, but legal aid could not he obtained unless there 89 Was to be an appeal; so there was a complete "Catch 22" situation. When the Registrar of the Court of Appeal was told that we needed the evidence, he wrote back saying that if, as a result of obtaining the transcript, it was found that an appeal could he made, the costs of obtaining the transcript would be paid for by the Court of Appeal; if not, we would be left holding the baby, as it were. That does not seem to me to be a reasonable way to proceed.
As a result of telephone conversations, it would appear, between the solicitors who were handling the matter and Master Mackenzie, the Registrar of the Court of Appeal, the Court of Appeal has now decided that at least the judge's summing up will be paid for, and once we obtain the text of the judge's summing up, if that helps in determining whether time of death was a critical factor in the conviction, we may well get the case re-opened.
I am therefore very anxious that the power to obtain transcripts should be available to the commission.
The third matter is independence. I shall not emphasise it at any length because other hon. Members have already spoken about it, but it is very hard if the same force who were responsible for conducting the prosecution and providing evidence for the prosecution have to investigate a miscarriage of justice because, in a sense, miscarriages of justice reflect on those who were involved.
The hon. Member for Sutton and Cheam (Lady Olga Maitland) was quite wrong about the Stefan Kiszko case; that was a deliberate withholding of evidence, and that deliberate withholding of evidence was very much to the discredit of the West Yorkshire police. I do not suggest that many people would be involved—probably very few, perhaps just one or two. Nevertheless, it counts against the force as a whole when that type of thing happens. It is very important that at least a different, independent, police force is involved, as a necessary safeguard.
I very much agree with my hon. Friend the Member for Blackburn (Mr. Straw), therefore, that we need independence. It would not increase costs because with other investigators, and therefore fewer police costs, the cost might be transferred. Perhaps I should also take into account the pace of the process. That man has been in prison for eight and a half years. If the commission is up and running in the next 18 months or sooner, and if it begins by considering cases which have been held up for a long time, it is possible that that case will be examined in three or four years' time. By then, that man will have spent a very long time in prison. We must do something to ensure that the commission is able to progress cases with greater speed than has occurred in the past.
Despite my concerns, I welcome the establishment of the commission and I am anxious to see it up and running and working effectively. I believe that it will be much more effective if some of the changes which I am confident will he proposed in Committee are accepted by the Government, and I hope that the Government will view them objectively because I do not believe that this is a party political issue.
Mr. Deputy Speaker
Order. There are 40 minutes before the wind-up speeches and four hon. Members who wish to speak in the debate. I make a plea that they speak for only 10 minutes each.
§ Mr. David Ashby (Leicestershire, North-West)
It is always dangerous to ask me to speak in a debate on the criminal appeal system. It is always assumed that Conservative Members will support the Establishment, but I believe that, in many respects, the Establishment has let down the country, in criminal appeals and elsewhere, and that it continues to do so. The appeal system should not be considered as infallible—in fact, it has been extremely fallible in many respects for a very long time.
Why do we need the Criminal Appeal Bill? We have had a Court of Appeal since just after the turn of the century, which is supposed to have done its job, reviewing cases and allowing appeals on cases. What has the Court of Appeal done for all those years? By and large, it has not been keen to overthrow convictions. It has been ultra-conservative and felt that it should support the Establishment view rather than adopt a strictly judicial one.
I have no great hopes or aspirations in my career. I do not expect to get on in the Government or to advance my career as a barrister much further. I do not care too much about that; I feel that I must express my views. I do not believe that the Court of Appeal has always behaved in the way that it should. We have only to examine some of the cases. Hon. Members on both sides of the House have cited murder case after murder case, as if to suggest that they are the only cases tried in the courts.
I do not believe that miscarriages of justice are few and far between; I believe that there have been many, and that they will continue into the future. We are talking about a very fallible process: human beings judging other human beings. There have been several recent examples of the fallibility of the jury system. One jury used a ouija board to decide whether a person was guilty. Another jury could not reach a conclusion and the foreman said that the decision was six to four, with two abstentions—as if a juror could abstain!
One often wonders what juries are up to. Thankfully, we are not allowed to ask too many questions; if we did, we might be a little worried about the jury system. The ouija hoard case involved someone very powerful and the court gave in. The usual argument is: "The jury decided it and we cannot override its decision. All the evidence was put before the jury. The defendant gave evidence, and the jurors decided not to believe him. Blah, blah, blah". In the end, appeals are often rejected out of hand, flying in the face of common sense.
I urge my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) to consider the number of times that the cases of the Guildford Four and the Birmingham Six came to the court before they finally came to appeal. Why did the Court of Appeal turn down those cases time and again? It failed us, and it failed the system of justice.
I have fought year in and year out over identification evidence. There is no more dangerous evidence than that. I am fallible in that regard: I have recognised my daughter in a hundred places when she was not there. When I was rather naughty in the Chamber, my hon. Friend the Member for Great Yarmouth (Mr. Carttiss) was named instead of me, so I slipped out before I could be named correctly. The badge messengers always mistake me for 91 my hon. Friend. That is a personal case of mistaken identification which occurs day in and day out. I am sure that the same sort of thing happens to everyone.
We went to the Court of Appeal with about half a dozen identification cases. The most dreadful miscarriages of justice occurred in the 1970s, and they prompted Lord Devlin to produce a report. He said that people should not be convicted on identification alone; there should also be corroboration. He was absolutely correct, and those of us who practise in the courts know that it is utterly wrong to convict on the basis of identification without corroboration. Yet hundreds of people are convicted every day in magistrates and Crown courts on identification evidence alone, without any corroboration.
I hope that you will tip me the wink when my 10 minutes is up, Mr. Deputy Speaker; I do not remember when I started to speak. When I get on my high horse, I tend to get rather excited.
In the R v. Turnbull direction on identification evidence, the Court of Appeal failed totally to meet any of the Devlin recommendations. It was a complete cop-out, and it has been copping out ever since on the question of identification evidence. That situation will continue, because I do not see the Court of Appeal changing its approach.
Only the other day, I had a case involving identification. The initial description offered by a witness, who had been with the defendant for only half an hour, was totally different from the appearance of the man he identified nine months later. That case resulted in a conviction because juries are like that. I am sure that the Court of Appeal would say that the jury heard all the evidence, and we should leave it at that.
We must look beyond the criminal cases review commission and examine the fundamentals of our criminal justice system. We must consider whether it is as good and as impartial as it should be, or whether it is a case of the great and the good lining their own pockets. I am terribly afraid when I hear my hon. Friend the Member for Sutton and Cheam say that the right people must serve on the criminal cases review commission. In saying that we must not have people from Liberty or Justice, she means that the great and the good and the right wingers should serve on the commission. They will look at cases like those of the Guildford Four and of the Birmingham Six and they will say, "We must not consider that case. It is a perfectly good conviction and we are perfectly happy with it. It should not be referred to the Court of Appeal." There will be refusals at the commission and the Court of Appeal levels, and the injustices will continue.
I believe that the hon. Member for Sunderland, South (Mr. Mullin) is the right person to chair the commission—although I suppose that he is happier fighting for his causes in this place. When the hon. Gentleman first came to the Chamber we thought that he was a loony lefty, pursuing ridiculous cases of failures of justice. We all thought that he was a very silly man; but he was right all the time. The more one talks to him, the more one realises that he makes good sense about the need for an impartial judicial system.
I agree with my hon. Friend the Member for Sutton and Cheam, who is not in her place, that we must be jolly careful about the commission's membership. We do not 92 necessarily want right wingers or the great and the good; we want people of independent minds, and we want the opportunity to use independent investigators. I am horrified at the thought that such investigators will never be used. The police might do 90 per cent. of the time, but somebody else may be needed the other 10 per cent. I look forward in Committee to giving the commission more scope and chance. I obviously support the Bill, but trust that I have fired sufficient warning shots across everybody's bows. I hope that I have not disappointed anybody.
§ Ms Jean Corston (Bristol, East)
I want to maintain the record by joining other hon. Members in welcoming the Bill. Given the long history attached to it, I am surprised that it has taken the Home Secretary so long to present it. Public confidence in the criminal justice system has been completely undermined by cases such as the Birmingham Six, Judith Ward, the Guildford Four, the Maguire Seven, the Cardiff Three and Stefan Kiszko. Between 1989 and 1992, more than 50 people were released from prison as a result of miscarriages of justice, which reflects points made by the hon. Member for Leicestershire, North-West (Mr. Ashby).
Some people—including senior figures in the judiciary—adhere to the utilitarian theory of justice. They argue that, in the event of a terrorist bombing of a pub, if some suspects are apprehended quickly, tried and convicted, it does not much matter whether they are guilty or innocent, because the bulk of the population will have a sense of security and enjoy peace of mind. Although that theory is shocking when presented baldly, it is credible for some jurists and members of the judiciary, and it has often overlain attitudes to so-called and real miscarriages of justice.
The right hon. Member for Mole Valley (Mr. Baker) established the royal commission on 14 March 1991. From earlier speeches, it is clear that that was the least that the right hon. Gentleman could have done. The royal commission reported 18 months ago and recommended a body such as that proposed in the Bill, but with considerable differences.
The history of support for such a body goes back a long way. In 1968, Justice recommended that such a body should be established, and the Home Affairs Select Committee reported in 1983. Sir John May's second report on the Maguire case was published on 3 December 1992. There were amendments at the Report stage of the Criminal Justice Bill in 1987, and former Home Secretaries who supported an independent element included the current Foreign Secretary and the right hon. Member for Mole Valley. Few cases have been referred—only 10 in 1994, and at 1 January 1995, 38 cases had been outstanding in the C3 department longer than one year.
I introduced a ten-minute Bill on miscarriages of justice on 16 February 1993. I commend that Bill to members of the Government Front Bench, if for no reason other than it is drafted in gender-neutral language. I record my thanks to members of the Public Bill Office, who helped me to achieve that. The Criminal Appeal Bill is full of "he" and "him". No doubt we will be told that, for legal purposes, "he" embraces "she"—but "she" sometimes gets a bit fed up being embraced by "he" in legislation. I 93 ask those responsible to examine my ten-minute Bill, to see that it is perfectly possible to draft legislation that applies to both sexes.
The Criminal Appeal Bill has major flaws. My Bill provided that
any person convicted of a criminal offence on indictment or that person's legal representativecould apply, but under the Government's Bill, the Court of Appeal offers the only route. A logjam seems inevitable. Also, the culture of the Court of Appeal is somewhat hostile to the overturning of jury verdicts or of the findings of judges of first instance.
I was pleased to hear from the Home Secretary that vacancies for commission membership will be advertised, but it is important that the criteria for appointment should be known and published. It would be better if the Lord Chancellor were responsible for overseeing appointments, as recommended by the royal commission, rather than the Prime Minister or Home Secretary. Those appointments should be handled by someone who does not hold direct political office but who is responsible for the judiciary.
Clause 13(1)(a) sets a high threshold from the referral of cases from the commission to the Court of Appeal. It refers to
any argument or evidence… which gives rise to a real possibility that the conviction, verdict or finding would not be upheld".The test of "real possibility" is too hard. It would be better to substitute the words, "relevant", or, "capable of belief", which are used in clause 4. Lord Devlin said once that a conviction is not safe if the jury has not heard all credible and relevant evidence. That would be a more acceptable hurdle than "real possibility".
There must also be rules to provide a duty to preserve or retain all evidence after conviction on indictment. That is possible, with the use of microfiche, without taking much space. Such evidence should be preserved for the duration of a sentence. All too often, when someone wants to argue a miscarriage of justice, it is found that the police have had a spring clean. There is not necessarily a malign motive, but evidence goes missing—often, evidence that was not put before the jury. The retention of evidence is important to someone who wants to claim a miscarriage of justice. Also, in a case such as that of the West Midlands serious crime squad, which was found to be riddled with corruption, police officers cannot be brought to book if evidence has disappeared. A rule that evidence must be retained and preserved would serve the interests of justice.
Many Members questioned whether investigating officers should be independent of the police. I will not rehearse those arguments, but I believe that they should be. We have only to look to Hong Kong to know that such independence is possible. That territory is one over which we have jurisdiction and where the staff of a comparable body to the commission is independent of the police. I am told by lawyers who have appeared in courts in Hong Kong that the system works well, and that there is no reason why it should not work here.
I echo the warning that it would he unwise to use the Police Complaints Authority as a model. On the day that the PCA came into being, the Police Federation said:
It will not enhance public confidence in the system and will probably not improve police morale either. We remain firmly of the view that only a wholly independent system of investigation will satisfy all parties.94 There has been reference to proper funding of this body. The hon. Member for Sutton and Cheam (Lady Olga Maitland), who introduced the only party political aspect to this debate—to put it tactfully—questioned how much the body would cost. My hon. Friend the Member for Sunderland, South (Mr. Mullin) who, in his absence, has been recommended for the post of first chairman of the commission—
§ Ms Corston
I think that it was meant as a compliment. In any case, my hon. Friend correctly pointed out the huge cost of investigating miscarriages of justice. He cited cases where there had been eight separate investigations, incurring untold expenditure. Justice does not come cheap; proper funding of this body is therefore essential.
The Bill should include some rules to provide for legal aid for appeals to the commission. Although access to legal aid has been cut drastically by the Government, such provision as remains should be extended to people applying to this body. If there is no access to justice, there is no justice. It is important that people who want to raise important matters of law in respect of their personal liberty should not be debarred through lack of funds.
This is not just a matter of public confidence; it is a matter of supreme importance for our criminal justice system and for people's faith in it, which has been considerably undermined. The people put behind bars should be the people who committed the crimes for which they were convicted.
The fact that people routinely do not believe in the safety of convictions does none of us any good and is a stain on our criminal justice system. It astonishes me that people are so ready to believe that there have been so many miscarriages of justice. None of us can be proud of the fact that there are so many. I hope that, in Committee, it will be possible constructively to raise some of these matters. I hope, furthermore, that we will not behave as the courts have often behaved: no one seems to have a duty to find out the truth, but we are asked to believe one of two stories.
§ Mr. Gyles Brandreth (City of Chester)
I begin with a moment of cross-party amity with the hon. Member for Bristol, East (Ms Corston), whose remarks about the irritation caused by the continual use of "he" and "him" I endorse. Surely the language can come up with alternative ways of handling the problem. It is a long-running irritant that needs dealing with. I also find the phrase "he embraces she" irritating.
I say that as one looking forward to attempting the new right-on green embrace widely advertised in today's papers. I have not yet had a go at it—[Interruption.]—and I hasten to add that I shall not be trying it out with my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby), whose speech was enormously entertaining and powerful. I would willingly have sacrificed some of my time to hear more of his bravura performance.
Incidentally, my hon. Friend seemed to have reservations about juries, and I understand his concern. It is worth thinking about the issue, because it relates to the wider one of rights and responsibilities. We all want the 95 right to be tried by a jury, but many of us try to avoid the responsibility of serving on juries. I often meet people who say that they would do anything to get out of it—they get their employers to send letters claiming that they are not free and cannot attend. If we want to be tried by juries—most people do—we should also accept the responsibility of being ready to serve on one.
Many hon. Members who have spoken today have declared an interest. I am a layman. I have an interest to declare among my antecedents: I am the son and grandson of lawyers. My declaration of interest covers both sides of the legal divide, in that a forebear of mine, Jeremiah Brandreth, was the last person to be hanged and then beheaded for treason in England—in 1812. Unfortunately, the commission was not around then; otherwise that miscarriage of justice would have gone straight to it.
Jeremiah was a Luddite, known in his time as the hopeless radical. I see myself more as a hopeful radical, which is why I am so pleased to welcome this Bill. At its heart is the need to maintain full public confidence in the criminal justice system. Ensuring that it operates fairly is essential if we are to maintain that public confidence.
The Government have already taken a number of steps to increase the chances of the guilty being properly convicted. I take issue here with the hon. Member for Morley and Leeds, South (Mr. Gunnell) and his objections concerning the right to silence. I think that the Government have moved in the right direction—likewise with the establishment of the DNA database and the changing of the identity parade procedures to prevent their abuse. All these are important.
It is equally important that only the guilty be convicted. The Bill is designed to ensure that that happens, and that, when miscarriages of justice occur, there is a fair and efficient system to put them right. It is also vital that any appeals system—this too underlies the Bill's principles—ensure that convictions that cannot be considered safe are quashed, leaving those that are safe to stand.
When the innocent are found guilty, it is every bit as much a miscarriage of justice as when the guilty are acquitted. Doubts about the safety of a conviction must he resolved at the earliest possible opportunity, preferably at the normal appeals stage. A last resort procedure should be just that: it should not be regarded as an extra stage in the standard criminal justice process.
There must also he consistency of approach in criminal proceedings, so that all the final decisions are taken by the courts.
I want to ask the Minister a couple of questions in the hope that he may answer them when he winds up. Hon. Members have discussed the membership of the commission, whose members are to he appointed by Her Majesty on the advice of the Prime Minister, as I understand it. Can the Minister confirm that the posts of chairman and of all the board members will be advertised? If so, in what sort of publications? I understand that at least one third of the membership have to be legally qualified, and two thirds of them must have some direct experience of the criminal justice system. I should like the advertising of public posts generally to be greatly extended.
Having become a Member of Parliament, one increasingly meets people who belong to that group known as the great and the good. Occasionally they 96 appear to be something of a stage army; one moves from one group to another only to find that the same names and faces, and the same types of name and face, recur. It would be good to take advantage of some of the country's untapped talent who would be willing to serve. The advertising and its placing are thus crucial.
The only anxiety about the Bill expressed in my constituency was put to me in the following simple terms: "Won't this Bill allow the police to investigate themselves? Are you comfortable with that? Wouldn't it be better to have some separate investigative unit?" I am comfortable with the idea, chiefly because of what I read in clauses 18,19 and 20. It appears that clause 18 will empower the commission to require the appointment of investigating officers to assist it in the exercise of its functions, and it can stipulate that those investigating officers come from a public body other than a body which originally investigated the offence.
The commission's direct supervision and investigation are important also. Clause 20 does not preclude the commission from obtaining opinions, commissioning reports and taking other steps to assist it its the exercise of its functions. I feel comfortable with that, because of the use of officers from other forces, where appropriate, and because of the commission's ability to ask for reports from outside bodies.
I endorse what my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) said about the role and standing of the police in our society. We are so often negative about everything. Instead of saluting our great institutions, as people would in other parts of the world, we take the opposite approach. We do not seek to build them up.
The only place where Great Britain does not have a great reputation is Great Britain. Our police are the envy of the world. We should be erecting statues to our police force in honour of what it contributes to our society, instead of constantly trying to chip away and undermine it. I salute the police of the United Kingdom, and I am comfortable with what the Government are proposing.
I should like to know whether my hon. Friend the Minister of State shares the concern that was expressed by my hon. Friend the Member for Blackpool, South (Mr. Hawkins) in a typically compelling intervention. The Bill states that representations are received on about 730 cases each year, and there is the expectation that such representations may double when the proposed commission is in place. My hon. Friend talked also about growing evidence of what might be called single-issue lobby groups.
There are days when I think to myself that the world is being run on "Today". I can almost foresee a time when, heaven forfend, an issue will arise and will be discussed on "Today". One side will put its point of view in about two minutes, to be followed by the other side, which similarly puts its point of view. The listener will then be invited to press a button on the radio to deliver a verdict. That would not be satisfactory, but unfortunately, there is a tendency for that approach to be adopted.
It will be far better to have a commission that investigates matters properly than to rely on campaigns that are driven, and sometimes fuelled, by those in the media, who may be interested in trouble-making as an exercise in entertainment and chasing audiences rather than reaching the facts. 97 I have no doubt that the cause of justice will be well served by the Bill. That is why I warmly welcome it.
§ Mr. Mike O'Brien (Warwickshire, North)
I begin by joining the general welcome for the Bill and our discussion of miscarriages of justice. It has been a constructive and largely bipartisan debate. My constituents often complain that Members are always arguing with one another. The problem is that journalists often do not report Members who make constructive contributions to debates where there is an element of bipartisanship.
§ Mr. O'Brien
My hon. Friend suggests from a sedentary position that there might not be as much press interest as there should be in this sort of debate. I hope that tomorrow we shall read in the newspapers of the importance that has been accorded to the debate, which goes to issues that are central to confidence in our criminal justice system.
The debate has been conducted in a high-minded and generally bipartisan manner. The problem is that the press seems always to go for conflict rather than consensus. That is partly the result of editorial judgments, which can be questioned. I hope that the press will respond to my plea for some publicity for the Bill, but I suspect that it probably will not.
I was pleased with the speech of the hon. Member for Leicestershire, North-West (Mr. Ashby). I congratulate him on a bravura performance. I should declare an interest as parliamentary adviser to the Police Federation of England and Wales. Today, however, I shall express my own views. The hon. Member for Uxbridge (Mr. Shersby) has already set out the views of the federation. As I shall talk about legal aid, I should mention that I am a non-practising solicitor. I used to practise criminal law.
The Bill is a step forward, but it needs amendment. There should be independence in the way in which investigations are carried out, and there is not at present. I hope that the Bill will emerge from consideration in Committee in a better form.
The fact that the Bill is before us on Second Reading is due to the involvement of a number of hon. Members, and especially my hon. Friend the Member for Sunderland, South (Mr. Mullin), who is not presently in his place. I well remember the day on which he was described by The Sun as the most odious man in Britain. Hon. Members on both sides of the House are now praising his integrity and judgment, given the way that he fought to ensure that we had a criminal justice system of which we could be prouder than we had a right to be in the past. Praise of my hon. Friend is well justified, as it is of other hon. Members on both sides of the House who have already been mentioned.
Miscarriages of justice such as the Birmingham Six, the Maguire Seven, the Guildford Four, Judith Ward and Stefan Kiszco have all undermined confidence in the criminal justice system. As a lawyer who practised criminal law, I believe that juries are the best way of dealing with serious criminal cases. However, as the hon. Member for Leicester, North-West said, they are all too often fallible instruments, especially when dealing with 98 evidence that is inadequate or contaminated, or where there is widespread public anger and demand for a conviction.
I well remember the case of the Birmingham Six because I come from the west midlands. I know that the jury relied on evidence that was put before it at the trial at Lancaster that was not good. It was forensic evidence, and the jury thought that it had the right to rely on evidence presented by someone of the supposed professional integrity of Frank Skuse, the forensic scientist. He provided it with what appeared to be incontrovertible evidence of guilt, which subsequently had to be dismissed for what has been termed "limited efficiency". That means, basically, that he was incompetent.
The jury relied on that evidence, and in some ways it had a right to do so. It relied on the integrity of that evidence, but it proved not to be accurate evidence. As a result, the Birmingham Six—this happened in other cases—went to prison. People went to prison who perhaps should never have gone to prison.
There is great pressure on juries. Again, I well remember the Birmingham Six case. There was enormous public outrage after the bombings, especially in the west midlands. Anger was expressed by many people. Fear was expressed by Irish people who lived in the area. A number of incidents occurred, and there was a great desire for convictions. The trial had to he transferred from Birmingham to Lancaster.
The jury considered the case in circumstances of enormous media interest and great public anger. It was righteous anger, in the sense that an appalling atrocity had been committed. In the circumstances, it would have been difficult for jurors to be unaware of the enormous pressure that was being put on them. It would have taken a brave jury to acquit.
Respect for the criminal justice system depends on us having confidence that it is a system that delivers justice. We must be satisfied that it is impartial between individuals and enforcement of the law.
According to an ancient axiom, justice must not only be done but be seen to be done. In most cases, the central concern about police involvement in the investigation of cases—especially when questions are raised about the actions of other police officers—relates more to perception than to reality; similarly, confidence in a legal system often involves perceptions of that system.
I accept the Home Secretary's contention that many miscarriages of justice have been corrected by the efforts of serving police officers who have investigated the quality of evidence—and, on occasion, their own colleagues. For many years, however, concern has been expressed about the police investigating themselves: although officers from other forces may carry out such investigations, the practice has been criticised on the ground that it does not appear to be sufficiently independent.
In practice, few problems have arisen, but the procedure leaves the police open to accusations by aggrieved parties. That is surely unnecessary: we need not have a system that allows such accusations, or perceptions, to exist. I believe that an independent investigation that is also of high quality can be introduced. The enhancement of independence will ensure that the commission is perceived as impartial and that its 99 judgments can be relied on—and we can achieve that, if we can also ensure that the quality of the investigation is high.
Hon. Members have suggested a number of ways of avoiding the need for serving police officers in other forces to be seconded to the commission for brief periods to investigate specific cases. We could provide a core staff including investigators; those investigators could he officers who had retired from the force because of injury, and who, although unable to carry out their duties on the streets, would be able to conduct investigations of this kind. Officers who had recently ceased to carry out investigation duties would be able to bring up-to-date knowledge of investigation technique to their new responsibilities, along with experience of the way in which the police put cases together.
As the hon. and learned Member for Burton (Sir I. Lawrence) pointed out, we could also use the many officers who have recently retired from the force. As such officers would not owe allegiance to the force in the future, they would be perceived as entirely independent: it would be assumed that, in their work for the commission, they would not need to be careful about how they dealt with serving police officers. Serving officers could also be seconded to the commission for a period—a substantial period, I hope. Some senior officers could conduct high-quality investigations.
It is important to bear in mind that the independence to which I refer will protect the police as well: it will protect their impartiality. Once their actions have been verified by a more independent group of investigators, no one will be able to allege impropriety in the investigation.
The Home Office says that such an arrangement might well cost much more, because it would require a larger core of investigators; the Police Federation fears that the Home Office has not recognised the substantial extra cost that would result from the use of serving police officers to investigate cases for the commission. In any event, I do not think that the cost would be much greater.
We must ensure that the correct cases come before the commission. Legal aid is important to the achievement of that end: the commission must be able to distinguish between real miscarriages of justice and frivolous cases. I am sure that many criminals will "try it on". The best way of dealing with that is to enable the defence to provide the commission with properly prepared briefs. Complainants and their solicitors must also be regularly informed of the progress of investigations, and allowed to make representations to the commission about the direction of those investigations.
I hope that the Minister will give us an assurance about the availability of legal aid. As has been pointed out by his own side, the Bill does not make the position clear. When I asked the hon. Member for Sutton and Cheam (Lady Olga Maitland) about the matter, she appeared to reassure me that legal aid would be available; she said that she had regular discussions with Home Office Ministers. It is now incumbent on the Minister to tell us whether we can rely on that assurance.
The cost of providing the larger core and of providing the legal aid will be significant but, in terms of the overall cost, the Bill is important, as it goes to the heart of restoring confidence in our legal system. The cost of that 100 confidence may be greater than the Home Office is willing to spend at the moment, but the price of a lack of confidence will, in my view, be much greater.
I welcome the Bill. I look forward to it being strengthened in Committee, and to a reduction in the number of miscarriages that we see in our criminal justice system in Britain.
§ 9.4 pm
§ Mr. Alun Michael (Cardiff, South and Penarth)
It is recorded somewhere in the annals of Welsh mythology that, when my hon. Friend the Member for Gower (Mr. Wardell) opened an Adjournment debate at 3 am, he sent his mother a tape of his speech. The following week, he heard her telling her neighbour that when her son, Gareth, spoke in the House, "You could hear a pin drop—in contrast to the noise, commotion and fury when Neil Kinnock or that Mrs. Thatcher tried to make themselves heard." The fact that there is no noise in the background to this debate may reflect a lack of controversy, but the fact that it has been a quiet and serious debate should not be allowed to diminish interest in this important Bill.
I must tell my hon. Friend the Member for Warwickshire, North (Mr. O'Brien) that sound, fury and disagreement on principle is not enough to arouse interest in the press and the media. I voted for the television cameras to come into the House, in the hope that they would help to inform the public of the serious issues that we debate. Their failure to record a single sitting of the Committee that considered either the Criminal Justice Bill or the Police and Magistrates Courts Bill in the previous Session was a disgrace. It is neither controversy nor quiet debate that seems to draw proper attention to some of the most important issues that we discuss in the House. It was appropriate that my hon. Friend's serious contribution, in which he raised a number of issues that must be debated in Committee, should close what has been such a good debate.
Like my hon. Friend the Member for Blackburn (Mr. Straw), I welcome the Bill. I welcome it with relief, because its gestation period has been equivalent to that of an elephant. It has taken a long time for the Bill to reach the Floor of the House. It will require hard work in Committee to ensure that the right Bill emerges. Concern was expressed by a variety of hon. Members on a number of points of detail, and a number of those points remain unclear.
I assure Ministers that we will bring a constructive approach to the discussions in Committee, with a view to returning to the Floor of the House a Bill to which we can give whole-hearted support and which will command the whole-hearted support of both sides of the House. It sounds rather boring, but that is our objective. If Ministers will share in the search for consensus, we will certainly play our part.
I am concerned about the availability of resources. I hope that the Minister will come prepared for a serious discussion on that issue in Committee, or, perhaps, reassure us this evening if he can. The hon. Member for Sutton and Cheam (Lady Olga Maitland) dismissed that concern with her customary cavalier attitude. The trouble is that there appears to be an intention to depend on the resources of the police. If demands on the police are considerable, it could bleed the local police—in different parts of the country at different times—of the staff that are necessary to undertake their normal duties. 101 There is some concern that those resources have been underestimated. If that is balanced by drawing off local police, which would result in a decline in the availability of senior officers at local level, that will be sad. Local communities should not pay the price for us getting our sums wrong at this stage. I believe that that will be an important discussion for us to have in Committee.
I must contrast the confused contribution of the hon. Member for Sutton and Cheam with the constructive approach adopted by Conservative and Opposition Members and by the Home Secretary and the shadow Home Secretary. By claiming the profession of journalist, she made the case against employing journalists in a way that was as devastating as it was unconscious and unintended.
It is in the best interests of the police that any case which may involve bad practice or the misuse of police powers should be objectively investigated, and it is also in the best interests of the police that that investigation should be as searching as it is fair. I think that that is the general belief of the police themselves. It is in the interests of the police, the public and those who may be the subject of miscarriages that there should be confidence on all sides in the body that we have set out to establish through the Bill.
It would have done the hon. Member for Sutton and Cheam good to listen to the hon. Member for Leicestershire, North-West (Mr. Ashby), who spelled out the precise reasons for rejecting complacency. Given the fragility of the whole system and the fact that our criminal justice system depends on fallible human beings, we would be foolish to put misplaced confidence in the idea that everyone in our prisons deserves to be there. That is not a reason to give up hope or to swing too far in ignoring evidence: it is a real life challenge. The true friends of our criminal justice system are those who love justice first and the system second.
My hon. Friend the Member for Sunderland, South (Mr. Mullin) has been identified by hon. Members in all parts of the House as a friend of justice rather than an old softie. That is absolutely right. I know from my knowledge of my hon. Friend that he is as concerned to see the guilty convicted as to see the innocent cleared. If in the course of pursuing one, we are accused of neglecting the other, we certainly need to consider our balance. My hon. Friend need have no concern in that regard, because he has been tough-minded on both. It is important to get that balance right.
My hon. Friend the Member for Coventry, South-East (Mr. Cunningham) was right to he positive about the body that we are establishing, and right to highlight the delay in setting up such a mechanism. That makes it all the more important to get it right. There are questions to be answered. How will cases come to the attention of the body? Access has been mentioned and is in the Bill via a referral by the Appeal Court, but what about other mechanisms? Will a convicted person who claims that there has been a miscarriage of justice be able to ask directly that the body should investigate the alleged miscarriage? Will referral from hon. Members be acceptable? We are often approached, sometimes inappropriately, but people often feel that as their elected representatives we can put them in touch with the authorities which will look after their interests.
102 It is correct that the right of the Home Secretary to refer to the Court of Appeal should be replaced in the course of establishing that body, but what of the Home Secretary's right to appeal to it? Those matters are not set out, but they are important. People's expectations of the body are important and those matters need to be spelled out in the Bill. I hope that the Minister will be able to give some answers in his response to the debate. If he does not, these issues will need to be pursued in Committee.
I pay tribute to all those who have worked so hard to get us to this point. The Bill has not happened by accident, nor has it come from the Home Secretary's goodness of heart. I say that even though I am being nice to him today. It is the result of a great deal of hard work, representations and pressure, and because of the willingness of people such as my hon. Friend the Member for Sunderland, South to take a great deal of stick and criticism in pursuing a cause that they believe to be right. My hon. Friend has been praised by hon. Members in all parts of the House for his objectivity. That probably worries him more than a savage attack by a Minister.
Such praise is right. In a democracy, there is a need for people to stand up for what they believe is right and on behalf of people whom they think need defending, even when that is unpopular. That stance has been thoroughly vindicated. I am sure that my hon. Friend must feel some satisfaction from seeing the Bill in the House, even though, characteristically and rightly, he expresses reservations about the Bill as it stands. He shares with others the concern that the Bill needs to be improved.
My hon. Friend the Member for Bristol, East (Ms Corston) introduced a detailed Bill, which was borrowed for amendments during the Committee stage of the Criminal Justice Bill—so her Bill was debated in this place in detail, as well as in general. With other colleagues—in particular, a former Member of the House, Lord Archer of Sandwell—we have tabled amendments on a series of Criminal Justice Bills, with the aim of expediting the establishment of the body that we are discussing today.
We are left with a big job for the Committee stage. One aspect that we need to consider is the role of the Appeal Court. My hon. Friend the Member for Sunderland, South (Mr. Mullin) referred to concerns about its operation. We want to ensure that difficulties do not remain after the passage of the Bill. The hon. and learned Member for Burton (Sir I. Lawrence) referred to the need to improve the criminal justice system to avoid miscarriages. I agree. Confidence is all the more fragile as a result of some of the more ill-judged elements of the Criminal Justice Act 1994, when the advice of the royal commission was ignored by the Home Secretary when he brought forward his recommendations. It makes it all the more important that protection should be put in place.
As a number of hon. Members have said, there is a need for a balance between convicting the guilty and protecting the innocent. No one can be content that our criminal justice system does either to perfection. The tendency to fragmentation is worrying and we need to get the different parts working in complementary fashion. It must be objectively seen to be clear who does what, but the different bits also need to complement each other. 103 I accept the general dependence, for example, on serving police officers as investigators. That proposal is not in dispute. However, what is in dispute is whether that dependence should be absolute and also the nature of the supervision of those who undertake the investigation.
The hon. Member for Uxbridge (Mr. Shersby) rightly said that immense sums of money are spent on legal aid and on the criminal justice system. In fact, there are three aspects on which we spend too little—victims, prevention of crime and reoffending, and tackling injustice, which is the subject of our debate today. We need to redress that balance within the system.
The hon. Member for Harborough (Mr. Garnier), depending heavily on the excellent Library brief—paying something of a tribute to the work of the House of Commons Library—
§ Mr. Garnier
It is kind of the hon. Gentleman to allow me to interrupt him. I did not actually refer to the Library brief at all.
§ Mr. Michael
It is interesting that there seemed to be a certain similarity between the brief and what the hon. Gentleman said. I took it as a compliment to the Library system. He made a curious reference to legislation by postcard. It is important that we do not allow that reference simply to pass, because the right to petition predates Parliament and the use of that particular form is one that should not be criticised as much as it has been in some quarters during recent times.
The hon. Gentleman also referred to his hope that the latest development will be the last for some time. I hope that he is right, but it depends on our work in Committee—where, I hope, we will avoid the party political knockabout and instead seek ways to improve the Bill so that we can avoid the dangers highlighted during the debate.
The right hon. Member for Mole Valley (Mr. Baker) said that investigating officers should be from a different force from that which originally investigated the case. Underlying that point is the important fact that justice must not only be done, but must be seen to be done. Therefore, the separation of responsibilities is important.
That is nowhere more important than in relation to the delicate issue of miscarriage of justice. We need to hear from Ministers how the investigation will be overseen, who will have the duty to set out the scope of police inquiries, including the number and rank of officers to be involved, the time scale and the likely cost. Who will direct and supervise all inquiries and certify that they have been satisfactorily completed? Is that a responsibility of the commission? It is not clear in the Bill, where responsibility appears to be split between the commission and the chief constable whose staff are seconded to undertake any investigation.
There are six aspects to the issue of objectivity and to ensuring that the commission is seen to be able to carry out its functions in a way that will inspire confidence on all sides. One is the matter of access to the commission.
Mr. Michael O'Brien—not the hon. Member, I hasten to add, but a constituent of mine—should be as familiar to hon. Members as my hon. Friend the Member for Warwickshire, North. He has written to every one of them at least once, and to all Members of the House of Lords 104 at least as frequently. He has put across to hon. Members his belief that he is the victim of a miscarriage of justice. Will the commission be able to scrutinise that sort of case, where a difficulty exists in finding new evidence? It is important that such questions and the question of time limits that could place an artificial limit on investigations should be discussed in detail in Committee.
The second aspect of the independence of the commission is the mode of appointment. Obviously, it is a positive step to advertise to raise interest in being appointed to the commission, but it is also important that the commission should be seen to be appointed through an objective process and, therefore, to be balanced and to inspire confidence. That point has been made by hon. Members on both sides of the House, and I hope that the Government will give it some thought. The Minister may be able to be positive about that point in Committee.
The third aspect is the commission's scope to investigate miscarriages of justice. The definition of the commission's responsibilities should be wide enough to allow for difficult cases. The threshold for investigation and for referral is an important point for debate. It was raised by the hon. and learned Member for Burton (Sir I. Lawrence), as well as by my hon. Friend the Member for Walthamstow (Mr. Gerrard).
Difficulties exist in other parts of the criminal justice system. The Crown Prosecution Service appears to be constrained from prosecuting in cases where it is generally felt that prosecution should follow. Such a constraint occurs in what is described as the public interest, but it may have more to do with a general financial constraint than with the specific case.
The Police Complaints Authority has been undermined by dissatisfaction about the way in which complaints are investigated. Part of that dissatisfaction involves worry about the investigation at the early stage—the investigation in the police force, where informal resolution too often appears. If there is genuine informal resolution, that is fine, but I and my hon. Friends are aware of cases where everyone believes that a case has been resolved informally except the person who has made the complaint, to whom it comes as a complete shock.
The pressure from the inspectorate for an increased percentage of informal resolutions is being exerted in the wrong direction. Such dissatisfaction has been caused in relation to the South Wales police, although I believe that that has been accepted, and that the matter is in the process of being set right. It is even more important that there should be confidence that the body that we are seeking to establish has the capacity to set matters right.
The threshold referred to by the hon. Member for Upper Bann (Mr. Trimble) is an important issue, which needs to be debated fully in Committee. We should discuss whether there should be a limitation on issues not already raised. I thoroughly agreed with the hon. Gentleman's point. We should not play a game. We should not think that anything is okay as long as it is being done by the rules. We need to ensure that the commission is able to deal with real miscarriages rather than be too hidebound.
The fourth point, therefore, is the test. Is "unsafe" too high a test to set? Should we accept the royal commission's recommendation that the test should be
is or may be unsafe"?105 I was not convinced by the Home Secretary's suggestion, in response to my hon. Friend the Member for Blackburn, that the choice of the higher threshold was a result of consultations.
The point is that, where there is a lurking doubt about a prosecution—a lurking doubt about a decision of the courts—there should be a capacity to investigate and to ensure that certainty is achieved, as far as is humanly possible. If we set the threshold too high, far too many cases in which there is no confidence in the outcome reached by the courts will not be capable of investigation by the commission. That will undermine confidence in the commission and will fatally undermine the commission in doing the job that the Bill sets it up to do.
Tied with that point is the oversight of investigators and the capacity of the commission to have its own staff who can oversee the investigations. That leads me to the fifth point, which is the accountability of the investigating officer. It is clear that the investigating officer is to be appointed by his or her own chief constable. It is explicit in the Bill that the report will be made both to the commission and to the chief constable. Is that sensible? Is it properly balanced? Is there not a split of responsibilities and a split of supervision as a result of the mechanism contained in the Bill?
The accountability of the police, following the centralising influence of the Police and Magistrates Courts Act 1994, should not be totally disregarded in emphasising the importance of the investigations being objective and accountable to the independent and responsible authority. The responsibility of seconded officers to the commission is therefore important, and it underlines the importance of the commission having the capacity for oversight.
That brings me to the sixth point, which is the right of the commission to have an independent capacity to investigate. For the commission to be totally dependent on the police and for it to be ruled out from any approach other than police investigation would surely be too limiting. It may only be in a minority of cases that anything else is required, but that minority of cases should be catered for in the Bill.
We should have a body that is capable, on occasions, of having an innovative approach to getting at the truth. Reference has been made to the Bridgewater case and a number of cases in which repeated investigations have not cleared up the remaining doubt about the safety of prosecution.
We should not look just at what the courts have examined already; this is not just about process. Although the involvement of the police is important, we should not disregard the pressures on the police, a point made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) earlier. The police have limited cash, which is being limited even more. They have been slimmed down, especially in respect of supervisory ranks. In some places there are one or two superintendents where previously there were five officers at superintendent or chief superintendent level. That reduces considerably the availability of people to be seconded to undertake a major investigation for an extended period.
I have concerns in my own area, where, for example, the Llanishen and Rhymney divisions have been merged, which is a mistake because it makes the division too big. One can imagine the position if the officer who had the task of supervising the whole area was taken off for a 106 time to conduct an investigation. Those are the very officers who will be needed for the oversight of investigations.
Questions remain to be discussed in Committee. There are, for example, the concerns of the hon. Member for Upper Bann about the special needs of Northern Ireland and about balancing the knowledge of law in the communities there with the requirements of objectivity and independent scrutiny. There are questions over the retention of evidence by the defence as well as the prosecution, and debate about who does what between the Police Complaints Authority and the commission. It is clear that some miscarriages have arisen from investigation by the Police Complaints Authority of allegations of misconduct by the police. There is a need for some overlap between the authority and the commission, but I would not want it to be drawn so tightly that the lines of demarcation were so clear that people or cases could fall between them. What is expected of those two bodies should be clarified.
The Home Secretary referred to identifying possible miscarriages as being a responsibility of the commission. Identifying is an interesting word to use, when "investigating" is the one that springs more readily to the lips. Perhaps that usage will be explained to us as the debate on the Bill continues.
The need for the commission to be visibly independent of the Government and the courts is undoubted and agreed by hon. Members on both sides of the House. The need for that commission to be independent also of the police or other authorities is equally important in those cases where that is an issue. I hope that that need, together with the question of the level of the threshold, will be subject to serious debate in Committee.
I agree with the Home Secretary that we need a simple and understandable test. That test, however, should be the right one. A higher threshold than necessary may unintentionally obstruct the search for justice and undermine confidence. That would be a grave mistake.
My hon. Friend the Member for Blackburn said that the Bill should foster the confidence of the public in the courts, the police and the system that regulates both. We need a Bill that covers all eventualities and allows confidence to be expressed in all aspects of the criminal justice system. We cannot be confident that nothing will ever go wrong again, but confident that a proper body exists to deal with matters when they go wrong.
The hon. Member for City of Chester (Mr. Brandreth), the hopeful radical, talked about the responsibility of being a member of a jury. He is quite right about that. I recall sitting in court for the first time as a magistrate, having sat in the back of the court on numerous occasions to observe the proceedings. That weight of responsibility is extremely heavy.
What came into my mind during my early days on the bench was the enormity of the responsibility when deciding between two cases; deciding between right and wrong and on guilt and innocence. That responsibility should not be underestimated, even when, after a long period in the courts, it is possible for people to become numbed, and therefore perhaps sometimes unable to distinguish properly the acute necessity of getting it right. That is why I agree with the hon. Gentleman about the importance of the process of appointment of the chairman and members of the commission. 107 I hope that the Minister will give a positive response to many of the serious concerns that have been expressed, especially as they have been put forward constructively by both Conservative and Opposition Members. There is a welcome consensus on the principle of the Bill. It is welcome that we have reached that point at least in political debate on miscarriages of justice. I hope that by the end of the Report stage, if not the Committee stage, we will have equal consensus on the detail of the Bill.
If we can achieve that, the Government and Opposition will have cause for pride, but if we fail, it will not be for the lack of trying on the part of Opposition Members. I hope that the Government will not spoil this ship for a ha'p'orth of tar. We have waited a long time for the Bill; let us not miss the opportunity to get it right.
§ The Minister of State, Home Office (Mr. David Maclean)
I thought that it would have been obvious to the hon. Member for Cardiff, South and Penarth (Mr. Michael) why so many colleagues, myself in particular, were so quiet in the debate. It is because I am still rather hoarse from cheering Gavin Hastings on Saturday. That is the only partisan note that I wish to make to the hon. Gentleman. [Interruption.] I am very much aware of possible Welsh supporters behind me and in a superior position.
We have had a serious discussion on the Bill tonight, and hon Members have raised a number of intriguing points. The debate has been cross-party, and I want to respond to a number of the points that have been raised.
As has been evident from the contributions to this evening's debate, the Criminal Appeal Bill goes to the heart of the criminal justice process, its effectiveness and integrity, and the checks and balances that any criminal justice system must provide in seeking to bring the guilty to justice while safeguarding the innocent from wrongful conviction. The Bill is firmly based on the recommendations of the Royal Commission on criminal justice, and on the detailed consultation that the Government undertook immediately after the royal commission reported. The welcome that the Bill received today from both sides of the House confirms that we can have confidence in it as a sound foundation for our criminal appeals system into the next century.
The independence of the criminal cases review commission which the Bill will create was properly emphasised today. The Bill addresses the matter of independence very carefully, while giving equal care to defining the proper relationship between the commission and other parts of the criminal justice system, as well as defining how the commission is to be accountable to Parliament and the public.
The commission will be independent of Government. My right hon. and learned Friends will relinquish their responsibilities for deciding whether to refer cases to the courts, and those decisions will in future he entirely for the commission. My right hon. and learned Friends will, however, retain their role in relation to recommendations about the exercise of the royal prerogative of mercy. Those powers will still be needed in very exceptional cases which, for whatever reason, the commission and the courts cannot deal with in the normal way of things. The 108 prerogative will still have a necessary function in relation to matters which have nothing to do with whether a conviction or sentence was right or wrong: for example, where mercy is justified for exceptional compassionate reasons. Such uses of the prerogative are, however, rare.
The commission's independence will be further guaranteed by the quality of its members and the range of skills and experience that they bring to the task. Once again, the Government's thinking follows closely that of the royal commission. Like the royal commission, we consider that the new body will benefit from having both legally qualified and non-legal members. We also consider that it should have people with a broad knowledge and experience of the criminal justice system, in addition to members from outside that system who will bring entirely fresh perspectives to the work. Thus the new commission will have strength in its diversity.
As is often said, any organisation is only as good as the people in it. Accordingly, we want the best and most suitable people to be members of the commission and comprise its staff. The posts of chairman and members of the commission will be advertised in the press. The job descriptions for those posts will be clearly set out to potential applicants. I do not yet know which newspapers the advertisements will be placed in, but the posts will be widely advertised. I say to the hon. Member for Sunderland, South (Mr. Mullin) that the advertisements will not be exclusively in The Sun; nor will they be exclusively in The Guardian, which may reassure my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland).
§ Mr. Maclean
No, the same view would not prevail, and my hon. Friend will not take me down that route tonight.
Candidates applying for the posts will be subject to an appropriate selection procedure to draw up a list of candidates from which the Prime Minister will make his recommendations to Her Majesty the Queen. I reassure my hon. Friend the Member for Upper Bann (Mr. Trimble) that at least one member of the commission will have knowledge and experience of the criminal justice system in Northern Ireland so that the commission is suitably qualified to consider cases arising in that jurisdiction. Of course, the commission will also need some staff with experience of the Northern Ireland legal system. I expect everyone to be appointed on merit and not for any other reason.
The commission will also be independent of the courts. It will not be a court, nor will it be part of the courts structure. There will be no right of appeal as such from the commission's decisions, but those decisions will be subject to the possibility of judicial review, as is proper in cases where liberty and livelihood may be at stake. But the important point is that the commission will be separate from the courts system, with a different composition and 109 different procedures. Having established its independence, it is important to get the relationship between the commission and the courts absolutely right.
§ Mr. Mullin
Does the Minister recall that the royal commission recommended that the chairman should not be a judge, past or present? Can the Minister clarify whether his Department accepted that recommendation?
§ Mr. Maclean
I was going to come to that point later, but the answer is that we have not yet come to a firm conclusion. We are mindful of the views of the royal commission and will take them carefully into account, but we have not yet made a final decision on the background skills and experience of the commission's chairman.
The final decision in any case on whether or not a conviction or sentence should stand will remain with the courts. The commission's function will be to decide whether a case should go to the courts for that decision to be taken. It is clearly of the greatest importance that the commission should not be misinterpreted as being somehow itself a court of appeal acting above, or in parallel with, the courts themselves.
The criteria for references in clause 13 of the Bill have an important part to play in defining that relationship, in a very broad sense, in the legislation. We agree with the royal commission's conclusion that detailed operating criteria are best left to the commission itself. Our own experience tells us that it is impossible to predict all the individual circumstances of the range of cases in which the question of a possible miscarriage of justice may arise.
We agree with the royal commission that the statutory criteria should be broad, although here we have departed in one important respect from its recommendation. The royal commission thought that the only ground for referring a case should be a belief on the part of the new body that a miscarriage of justice may have occurred. In our view, it is necessary to go a little further than that.
There are in essence three elements to the criteria for the reference of convictions in clause 13. First, there must be some new argument or evidence not previously raised at the trial or on appeal. Secondly, there must be a real possibility that the reference will lead to the conviction being quashed. To the hon. Member for Bristol, East (Ms Corston) I say that the phrase "real possibility" is a wide one—the alternative would be to have no real possibility, which would be extraordinary. That is a wide ground for referral. Thirdly, references may be made only outside the normal appeals process. Similar criteria are to be applied in sentence cases.
The requirement that there be some new element for the court to consider is broadly expressed, but it is of great importance. It defines the relationship between the commission and the courts: the one body referring, the other deciding. Unless there is some new element for it to consider, the Court of Appeal or the Crown court would simply be being asked to consider reversing its own previous decision—the point that I was raising with the hon. Member for Upper Bann (Mr. Trimble). In the absence of anything new, the implication would be that the commission which had referred the case disagreed with the previous finding on appeal. That would place both the commission and the appellate court in a most invidious position.
There would also be no real purpose in such a reference, since the appellate courts cannot be expected to alter their previous judgments unless there is some 110 substantial new point on which they can focus. For both those reasons, it would be unhelpful if the Bill appeared to leave open the possibility that such referrals could be made, thereby confusing potential applicants as to the nature and scope of the commission's responsibilities. The criteria in clause 13 avoid that pitfall, while enabling the commission to refer every possible sort of case in which the courts might come to a fresh view on a further appeal.
The hon. Member for Sunderland, South (Mr. Mullin) asked me about the test for fresh evidence and grounds of appeal. The discussion paper gave a broad welcome to the royal commission's formula of "is or may be" unsafe, because the Government recognise the need to bring clarity and simplification into such matters. However, the royal commission's formula goes wider than the current practice of the Court of Appeal and was, on examination, found to be uncertain in its effect.
The formula in the Bill provides a simple test, which effectively restates the existing practice of the court, as was wisely noted by my hon. Friend the Member for Hertfordshire, North (Mr. Heald), and I think that my hon. and learned Friend the Member for Burton (Sir Ivan Lawrence) concurred. I can assure the House that it does not narrow the grounds for allowing an appeal.
On the test for receiving fresh evidence, the Court of Appeal will receive fresh evidence if it considers that it is capable of belief, rather than, as at present, that it is likely to be credible. That was recommended by the Royal Commission on criminal justice. It provides a lower threshold for the admission of fresh evidence in appeals.
My hon. and learned Friend the Member for Burton made some comments in his speech about the word "unsafe"—or the word "unsatisfactory" in the definition of unsafe. The primary test is whether a conviction is unsafe. It is possible that a material irregularity, such as the fact that the police lied to the jury, will cast such a doubt on the safety of the conviction that it is now unsafe. That will depend on the circumstances of the case. The courts have ruled that there is no real difference between "unsafe" and "unsatisfactory". The Royal Commission agreed with that.
My hon. and learned Friend the Member for Burton also asked about the proviso. The Bill abolishes the existing proviso that the Court of Appeal need not quash a conviction if it believes that no miscarriage of justice has occurred. All would turn on whether a conviction is unsafe. The Lord Chief Justice and members of the senior judiciary have given the test a great deal of thought, and they believe that the new test restates the existing practice of the Court of Appeal.
Clause 4 lowers the threshold for admission of new evidence to some extent, but I do not believe that it would be right to lower it significantly. Other elements of the existing test are important; for example, there must be a reasonable explanation for the failure to adduce evidence at the original trial. Since the Royal Commission reported, the courts have taken a more flexible view of appeals based on flagrant incompetent advocacy, as the case of Clinton showed, but we need to be careful about permitting cases to return to the Court of Appeal simply because the defence have tried one defence and failed and now wish to try a tactical change of defence manoeuvres.
I am not aware of the article by Sir John Smith QC to which my hon. and learned Friend the Member for Burton referred, but I look forward to reading it before the Committee meets, if it is possible by that date. 111 I shall now discuss the crucial matter of investigations in miscarriage of justice cases, to which the Government have given a great deal of thought, and which was the subject of most comments by most speakers.
§ Sir Ivan Lawrence
I am sorry to interrupt my hon. Friend's train of thought, but I wish to ask him a question before he does that.
Perhaps the most significant and important question that has been asked about the investigation process is what happens if the criminal cases review commission digs up some evidence that is not strictly admissible in court, such as hearsay. Will the Court of Appeal say, "We are sorry, but hearsay and is inadmissible and we shall not take it into account in considering whether there has been a miscarriage of justice"? If my hon. Friend cannot deal with that question straight away, perhaps I might receive a reply in due course.
§ Mr. Maclean
I am happy to give my hon. and learned Friend a more detailed reply in due course, but that could be one of those cases in which the exercise of the royal prerogative might be appropriate.
Other people have commented extensively on the laws of evidence. The laws of evidence are being considered by the Law Commission at present—[Interruption.] Yes, by the Law Commission. It is therefore appropriate to consider what it has to say about hearsay and all other aspects of the laws of evidence.
Different opinions have been expressed by hon. Members tonight about whether, how, how far and in what way police officers should be involved in those investigations. The Government recognise that that is a crucial aspect, and we have considered it carefully. However, it was not merely our own experience which told us that a great deal would be lost, and that the new procedures would be considerably weakened, if it were not possible for the commission to have access to the experience and expertise of the police.
The royal commission, after all the evidence that it had seen and heard, and after all the consideration given to those matters, concluded that there was no practical alternative to using police forces in those investigations. Moreover, the need for access to police skills and expertise was endorsed by the majority of those who commented on the point in response to the Government's discussion paper. The paper took care to set out a number of different options for the way in which investigations might be carried out by the new independent body.
Hon. Members emphasised the need for independence in those investigations, and they are right to do so. The proposals in the Bill do not say that the commission will simply hand over its inquiries to a police force and then sit back and hope for the best until the relevant force has reported back. Far from it—the commission will have powers to direct and to supervise any investigation. And "supervise" means just that: a member of the commission will be able to take as active a role in overseeing the inquiries as he or she judges necessary or appropriate in the circumstances of the case.
If it is necessary to accompany an investigating officer when he interviews a witness, a member of the commission will be able to do that. If the commission wants to ask specific questions of a witness, it will be able 112 to require those questions to be asked. If, for some reason, the commission prefers to speak to a witness directly, or the witness prefers to speak directly to the commission, that may occur at the commission's discretion.
All of that seems to provide the measure of independence that the Government are as anxious as hon. Members to see provided. The expertise provided by police officers and the independent contribution made by the directing and supervising members of the commission will be a powerful combination in getting to the root of often complex cases.
The hon. Member for Blackburn (Mr. Straw) pressed the point about having a corps of investigators in the commission to be used only occasionally. I think that the demand for larger, more complex investigations is likely to fluctuate, and it would be difficult to establish a unit of optimum size. Sometimes the investigators would be under-occupied and on other occasions they would be terribly busy. It would be difficult to get the size of the unit right.
Such a unit would have to be accountable to the exercise of police powers and subject to disciplinary arrangements in respect of its operational duties. Special arrangements would have to be put in place to give the investigators access to training opportunities to keep them in touch and up to date with all elements of police practice, investigative techniques, and so on.
Experience shows that in a significant number of cases the investigation required is very straightforward. It would be far quicker and more cost effective to ask the force concerned to undertake the work. That force often knows the background to the case and where to find the people concerned. We think that it would be less effective to ask a group of officers who are unfamiliar with the case to make the same inquiries.
Another point which I stress to the hon. Member for Upper Bann, which has probably not been picked up, is that the commission's staff will include three or four investigators who will be serving police officers. They will be responsible for directing, planning and supervising the investigations which will be conducted by the external police officers.
§ Mr. Michael
I am slightly confused by what the Minister has said. Before he gave way, he seemed to be conceding our point that there should be a corps of employees in the commission capable of overseeing the investigations. The general point is surely not that the commission should employ a large number of people, but that there should be a minimum corps to ensure the commission's capacity for independence. Judging from what he has just said, the Minister will surely accept that point.
§ Mr. Maclean
I am not conceding the hon. Gentleman's point. I think that he recognises what I said a few hours ago to the hon. Member for Upper Bann: we expect the commission's staff to include some serving senior police officers who are able to direct, supervise and control the operations and assess the quality of evidence that the investigating police force has. The prime distinction is that those people will not carry out the investigations themselves. They will not be investigating 113 officers conducting investigations around the country; they will be employed by the commission to control and direct other police officers.
§ Mr. Maclean
Perhaps the hon. Gentleman's point can wait until consideration of the Bill in Committee, as I wish to reply to many other points. If there is time at the end of my speech, I will allow the hon. Gentleman to intervene again.
My right hon. Friend the Member for Mole Valley (Mr. Baker)—I will pay a glowing tribute to him later in my speech—agreed that there should not be a separate independent police investigating body. However, he thought that perhaps the investigating officer should always be from another force. That would remove valuable flexibility and would not allow the best use of resources.
In a case in which no question had arisen about the propriety or effectiveness of the original investigation but one or two potential witnesses needed to be found and interviewed, inquiries by the original force are likely to be quicker and less cumbersome than bringing in an officer from an outside force on every occasion. The commission has the power to require an outside force to investigate wherever it judges such action to be necessary. We would like to keep the flexibility in cases—perhaps the vast bulk of them—where it will be sensible to use the original force.
My right hon. Friend the Member for Mole Valley has more experience than most people have of the difficult and complex issues raised by miscarriage of justice cases, and he has great experience of the hard decisions that have to be taken. I welcomed his eloquent remarks, and was glad to hear him praise the patient, able and conscientious work done over the years. I am delighted that he paid glowing tribute to the C3 division of the Home Office, whose members have been unsung heroes for years, for all their hard background work in dealing with difficult miscarriage of justice cases.
The Bill is of the utmost importance in strengthening the procedures by which potential miscarriages of justice may be swiftly identified and corrected. Like any other system or organisation, the criminal justice system depends on the people who work in it. The processes of investigation, trial and appeal are made up of a complex interaction of human decisions. Like any system that is operated by human beings—as my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) said—things will sometimes go humanly wrong.
The House recognises that the consequences of such mistakes for an innocent person are terrible and profound. Moreover, the conviction of an innocent person means that someone else has escaped punishment—and possibly that a dangerous person may still be at large. Our duty to individual citizens and to the public in general is to ensure that all appropriate safeguards are placed along the way, so that neither mischief nor lack of vigilance prevents the conviction of the guilty and the acquittal of the innocent. I pay tribute again to my right hon. Friend the Member for Mole Valley for establishing the royal commission, and for being the progenitor of the excellent Bill that is before the House.
My hon. Friend the Member for Harborough (Mr. Garnier) and other hon. Members asked about legal aid. Legal aid will continue to be made available through the 114 green form scheme, to assist applicants to make representations to the commission. The commission's procedures will be investigative, so no additional form of legal aid will be necessary. Once a case has been referred to the courts, the appellant may apply for legal aid for the appeal. As to judicial review of commission decisions, those challenging a judicial review might get civil legal aid, depending on their individual circumstances.
The hon. Member for Upper Bann asked about the relationship between the Police Complaints Authority and the commission. I recognise the potential for overlap, which will require co-operation between both bodies. Under present arrangements, where such an overlap occurs it results in a single investigation under the PCA's supervision. Similar administrative arrangements will be needed when the commission takes over the Secretary of State's powers. The scope of the commission's inquiries may go wider than the PCA.
I was asked about the situation in Scotland. My right hon. Friend the Secretary of State for Scotland has appointed a committee to examine possible miscarriages of justice there and what should be the response of the Scottish Office, and I understand that that committee is due to report in 1996.
As to the laws of evidence, I intimated that the Law Commission is examining that aspect. I was also asked whether the commission would be able to obtain transcripts of certain cases. The answer is yes, the commission can get transcripts; it can get anything it likes, within its generous £4.4 million budget.
Our criminal justice system has rightly been the envy of the world. If it is to remain so, we must be continually developing and refining it, acknowledging and learning the lessons of what has worked well and what has gone wrong. The Bill is the result of much thinking and much experience, not only in Government but outside, especially on the part of the royal commission. I believe that its contribution to the quality of our system of justice will be both lasting and substantial. I commend the Bill to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).