§ '. —(1) A failure by any individual or organisation to disclose material required to be disclosed to the prosecutor under the provisions of this Act shall be an offence.
§ (2) An offence under subsection (1) may be punished on conviction on indictment by imprisonment for five years or a fine, or on summary conviction by imprisonment for six months or a fine at level 5 on the standard scale.'.—[Mr. Michael.]
§ Brought up, and read the First time.
§ Mr. Michael
I beg to move, That the clause be read a Second time.
New clause 14 introduces a penalty for failure to disclose information. It arises from the concern that is felt in many places that the legislation as it stands is balanced in terms of obligations, which is why we have supported it and the principles that it seeks to introduce, but that there is no equivalent penalty for the failure to disclose by the police or the prosecutor. It is for that reason that we have tabled the new clause.
The new clause makes it clear thatA failure by any individual or organisation to disclose material required to be disclosed to the prosecutor under the provisions of this Act shall be an offence.It arises from discussion in Committee when, in response to the debate, the Solicitor-General suggested that, as far as prosecutors are concerned, the professional onus and requirements placed upon them would give a mechanism to deal with any breach.
It was pointed out during the course of that debate, however, that there is no similar onus and no penalty in respect of a failure to disclose by the police to the prosecutor. It was also pointed out by my hon. Friend the Member for Sunderland, South (Mr. Mullin) that a number of miscarriages of justice had arisen precisely from failure to disclose by the police at an appropriate stage.
Now that we are giving matters much greater clarity in the Bill and in the code of conduct that will follow it, it is surely appropriate that in the background there should be the possibility of punishment, which surely concentrates minds when it comes to ensuring that the letter of the law is observed.
I emphasise that the new clause does not mean that an inappropriate or excessive punishment would follow an accidental breach of the requirement. I took advice in advance of today's debate and in preparing the wording of the new clause and the advice was to the effect that accidental failure or a minor sin of omission could be dealt with by no prosecution taking place. However, there are occasions, and there have been events in the past, when an omission or a failure to provide information has had a major impact, and when it has been serious and deliberate. Such an event requires the new clause to be added to the Bill.
The situation for the prosecutor is, in the view of the Solicitor-General, already covered in the legislation. The Opposition were not entirely satisfied by that, but we accept that the Solicitor-General made a strong case in Committee. However, there is a gap with regard to the investigator.
It is for those reasons that we seek to add the new clause to the Bill. In Committee, the Solicitor-General referred to professional discipline and the views that can 368 be expressed by the jury. But they can be expressed only if matters come to light in a way that enables a jury to make such an observation. The question is whether there is a suitable mechanism to deal with a failure to disclose in the manner described in the new clause. The Opposition believe that it would fill a gap and ensure a proper balance between the two sides involved in dealing with a case in the courts.
§ Mr. Chris Mullin (Sunderland, South)
I support the new clause. Non-disclosure, deliberate or negligent, has been a feature of most of the major miscarriages of justice that have been proven during the past four or five years and of many of those that are alleged. One feature common to all such cases is that, even if those responsible for suppressing inconvenient information or evidence are caught red-handed, nothing ever happens to them. To my knowledge—I welcome correction— even though they have been caught red-handed and in some cases denounced by the judge, no prosecutor or police officer has suffered anything more than mild inconvenience. As a result, they do not have much incentive to ensure that all evidence that should be put before a court is put before it.
The new clause will provide them with an incentive. No one is suggesting that in cases of minor negligence some draconian penalty should be visited on those responsible. But where, as in the Guildford case and the Judith Ward case, for example, there was a deliberate suppression of evidence at a high level, in which a number of people connived, some of whom either were at the time or went on to become very distinguished, they should be aware that some penalty awaits them. That has not been the case in the past, but it must happen in the future if the legislation is to be taken seriously by those whose job it will be to implement it.
§ The Solicitor-General (Sir Derek Spencer)
Without being disrespectful to the hon. Members for Sunderland, South (Mr. Mullin) and for Cardiff, South and Penarth (Mr. Michael), who have just spoken, I can deal with the matter quite briefly.
In summary, the new clause is quite unnecessary, as a range of sanctions are already in place that are proportionate to the gravity of the failure to disclose. Let me explain. The objective, which I assume lies behind the proposal, of ensuring that the prosecutor has available all the necessary information is sensible, as the system will not work properly unless evidence is properly gathered by the police and they reveal it properly to prosecuting counsel in accordance with the regime set up by the Bill. Clearly, the police and other investigators must help the prosecutor if the disclosure system is to work.Inb
The responsibilities of the police to retain, record and make available to the prosecutor relevant information obtained during an investigation will be set out in the code of practice, for which provision is made in clause 22, which is extensive and contains many paragraphs that deal with the duties of the police in relation to a wide variety of material. We are also amending the Bill to place a duty on the police to investigate all reasonable lines of inquiry, both those that point 369 towards the guilt of a defendant and those that point the other way. That mirrors best practice at the moment but it is a new step in terms of statute.
Sanctions already exist if there is a failure to meet responsibilities by law. I shall say briefly what they are: first, a deliberate failure by an investigator to disclose material could render him or her liable to prosecution for perverting or attempting to pervert the course of justice. If two or more are involved, the offence would be conspiracy. I am surprised that the hon. Member for Sunderland, South says that no more than slight inconvenience has been caused to those caught grievously—and dishonestly—failing in their duty to disclose. He must be familiar with the criminal proceedings that were taken against the police officers who inquired into the Birmingham Six and the Guildford cases, in which the officers were prosecuted and the due process of law took place.
§ The Solicitor-General
My patience was taxed in Committee by the hon. Member for Cardiff, South and Penarth, but, notwithstanding that, I shall give way.
§ Mr. Mullin
I am very familiar with the two cases that the Solicitor-General just named, and I have rarely seen a more half-hearted attempt to prosecute those allegedly responsible for fraud and perjury on a vast scale. Can he name one example of any charges brought against the Crown prosecutor for deliberately suppressing inconvenient evidence?
§ The Solicitor-General
There has never been any evidence that counsel or any Crown prosecutor acted in a dishonest way. I am surprised at the selective way in which the hon. Gentleman addresses the problem. When he made this complaint in Committee, and repeated it just now, he overlooked the prosecution of the police officers in the Birmingham Six and Guildford cases. He casts aspersions, sometimes on named and unnamed prosecutors, and in Committee he went so far as to say:I do not doubt that everyone intimately involved in those cases, including Lord Havers and the DPP, knew from the outset that they had got the wrong people once they had caught the right people, but they chose to rewrite the script to prevent that from coming out."—[Official Report, Standing Committee B, 21 May 1996; c. 137–138.]I have to say that, as Lord Havers' former pupil in chambers and then his Parliamentary Private Secretary when he was Attorney-General, I repudiate entirely those allegations, which are not supported by a shred of evidence. Indeed, Sir John May's report, which was published in two stages, the second part in 1992, demonstrated quite clearly to anybody who was prepared to read it that the allegations that the hon. Gentleman just made were without foundation. I remember standing at the Dispatch Box shortly after the second report had been published and saying just that. I am deeply disappointed with the hon. Gentleman's approach to the problem.
§ Mr. Mullin
I have done so, as it happens.
370 When members of the IRA unit captured at Balcombe street were arrested, they owned up in considerable detail to the Guildford and Woolwich bombings. They were interviewed by superintendent Peter Imbert, who told the Home Affairs Select Committee that the Director of Public Prosecutions was responsible for ensuring that the statements from the captured IRA people were not made available to the defence. I rest my case.
§ The Solicitor-General
This has all been investigated in the greatest detail by Sir John May, whose report is available for anybody who cares to read it. The hon. Gentleman talks about rewriting the script. When rewriting the script is discussed, he should own up to doing just that, because his account of these matters does not bear the most cursory examination.
§ The Solicitor-General
Let me proceed with something serious and not be distracted by such trivia.
The second possible sanction available if there has been a failure to disclose is disciplinary proceedings against the police. New disciplinary arrangements are currently being developed following the Police and Magistrates' Courts Act 1994.
Thirdly, clause 25(4) requires the court to take into account, when determining any question arising in the proceedings, a failure by a police officer to comply with the code, or a failure of any other person charged with the duty of conducting an investigation to have regard to the code.
Fourthly, if new relevant information becomes available after conviction, it may form grounds for an appeal.
The new clause is defective because, as the hon. Member for Cardiff, South and Penarth observed, it contains no mental ingredient at all, in the sense that it just speaks about a failure to disclose. It does not say whether that failure is deliberate or reckless or whether there is any reasonable excuse. It says that the maximum penalty for that is five years imprisonment on indictment. But its deficiencies do not end there. I imagine that it is an example of the law of unintended effect. It is drafted so widely that it appears to take into account the defence as well as the prosecution. Accordingly, if there is a failure by the accused or his or her legal adviser to disclose, that might also be caught by the new offence. I doubt very much whether that is what the hon. Gentleman intends.
The hon. Member for Cardiff, South and Penarth said that I concentrated in Committee on the professional restraints on the Crown Prosecution Service and on counsel involved in the case. I did not concentrate on it; I referred to it, but on this occasion I do not think that it is necessary to repeat what I said in Committee. I invite the hon. Gentleman to reconsider the matter, and I hope that when he has done so he will agree that the new clause is unnecessary and withdraw it.
§ Mr. Michael
I have never heard such an inadequate response from a Minister. If the Solicitor-General's patience was taxed in Committee, he must suffer from patience deficiency syndrome. His patience should not 371 have been taxed in Committee because we tried to have a reasonable discussion there; he must be an extremely impatient man.
The Solicitor-General's response today has been complacent in the extreme and he does neither himself nor the legal system any benefit by it. It is a great pity that he has been distracted from whatever he would otherwise have been doing by being brought before the House for the trivial matter of trying to ensure that justice is conducted in such a way that the guilty are punished and the innocent walk free. The Solicitor-General has not enhanced his reputation by the way in which he has dealt with this debate.
I explained in my introduction, to which the Solicitor-General does not seem to have listened, that the case of someone who is acting inadvertently is not affected by a requirement of recklessness because there is no need for a prosecution to follow if there is an explanation of an accidental omission. The court would be able to take that fully into account and would not have to use the top end of the penalty scale if it was inappropriate to do so. It shows a lack of confidence in the courts to suggest that they would be constrained to act in a different way.
The Solicitor-General concentrated on the position of the lawyers in his response in Committee; that is not dealt with under the new clause. I am also surprised by his suggestion that the requirement of disclosure includes the defence because it is clear that the requirement is onany individual or organisation to disclose material required to be disclosed to the prosecutor under the provisions of the Act.That requirement is clear.
I am disappointed by the Solicitor-General's response; he has not engaged seriously with the serious issues before us. It is clear that he and the Government would vote against the new clause, so there is no point in taking up further time. I therefore beg to ask leave to withdraw the new clause—not because we have been wrong to raise the issue, but because there is no need to take up the time of the House following such an inadequate response.
§ Motion and clause, by leave, withdrawn.