Criminal Cases Review (Insanity) Bill [Lords]

HC Deb 23 July 1999 vol 335 cc1469-505

Order for Third Reading read.

9.33 am

Mr. Chris Mullin (Sunderland, South)

I beg to move, That the Bill be now read the Third time.

I need not detain the House long. This Bill has one simple purpose, which is to plug a small gap in the Criminal Appeal Act 1995. That Act set up the Criminal Cases Review Commission, which deals with alleged miscarriages of justice. The Bill empowers the commission to deal with cases—there are likely only to be a handful—in which a person has been found guilty but insane. That verdict was available to the courts until the 1960s, when it was replaced by a verdict of not guilty by reason of insanity.

The Criminal Appeal Act 1995 empowers the commission to deal with verdicts of not guilty by reason of insanity, but no one, myself included, foresaw that there might still remain a handful of disputed cases that dated from the earlier era when the verdict was guilty but insane. Consequently, the 1995 Act made no provision for such cases.

The case that brought the anomaly to light was that of Iain Hay Gordon who in 1953 was tried in Northern Ireland for the murder of a young woman. The case attracted enormous interest since the victim was the daughter of a prominent judge. There are good grounds for believing that Mr. Gordon was neither guilty nor insane, but those are not matters that need detain us—suffice it to say that Mr. Gordon, who is now frail and elderly and has long protested his innocence, applied in 1998 to the Criminal Cases Review Commission for his case to be re-examined.

The commission, after seeking legal advice, decided to refer back to the Northern Ireland Court of Appeal the issue of whether it was empowered to consider cases involving a verdict of guilty but insane. The Northern Ireland Court of Appeal ruled that it was not—hence the need for this Bill.

Lord Ackner first attempted to introduce a Bill for this purpose in July last year, but it unfortunately failed to become law for lack of time. In March this year, he introduced the Bill before us, and as he said at the time, the omission of a verdict of guilty but insane from the 1995 Act is an error that has created a "longstanding and tragic absurdity" in the case of Iain Hay Gordon. Such an outcome was never intended by any of those—and I was one—who played a part in the passage of the 1995 Act. This Bill seeks to rectify that.

Mr. Eric Forth (Bromley and Chislehurst)

Can the hon. Gentleman tell us whether there is a significant number of other likely cases in this category? Are we dealing with only one known case, or does the hon. Gentleman believe that there might be others—perhaps only a small number—to which the benefits that he is claiming for the Bill would apply?

Mr. Mullin

I am aware only of the case of Iain Hay Gordon. Although I could not give the right hon. Gentleman details, I have heard that there is at least one other, but it is unlikely that there are more than three or four because we are talking about cases that date from before the mid-1960s.

Mr. Edward Garnier (Harborough)

Even if the Gordon case is the only one which this Bill will correct, does the hon. Gentleman agree that that of itself is sufficient reason for passing it?

Mr. Mullin

I most certainly do. If Mr. Gordon is innocent, he has had hanging over him for more than 40 years a considerable burden. He wants to see that put right before he dies. The Criminal Cases Review Commission is extremely keen to deal with the case expeditiously, but cannot do so until the Bill becomes law. I therefore hope that everyone will co-operate towards that end.

I thank all those who have helped to address this problem, not least the Under-Secretary of State for the Home Department, my hon. Friend the Member for Vauxhall (Kate Hoey) and Home Office civil servants, for the constructive part that they have played in the drafting and passage of the Bill. I acknowledge, too, the helpful approach of the Criminal Cases Review Commission and thank the right hon. Member for Penrith and The Border (Mr. Maclean)—himself a former Home Office Minister—for the constructive approach that I understand he intends to take.

I hope that the commission will do all that it can when the Bill becomes law to expedite consideration of Mr. Gordon's case. I am aware that it has a large backlog of cases and a policy of not giving priority to those who are at liberty unless there are exceptional circumstances. As I said in response to the right hon. Member for Bromley and Chislehurst (Mr. Forth), there clearly are exceptional circumstances in this case: getting on for 40 years have elapsed since Mr. Gordon was convicted. Many of those who were directly involved in the case are already dead and Mr. Gordon is elderly and not in the best of health, and wishes to see the matter resolved in his lifetime.

I also gently draw the attention of the Criminal Cases Review Commission to recommendation 7 of the recent Home Affairs Committee report on the commission's work, which expressed the hope that, in the light of extra resources made available this year, some progress would be made on the backlog of cases involving persons at liberty.

I was glad to hear yesterday that the commission has started preliminary work on the Iain Hay Gordon case. I hope that the commission will regard the smooth passage that Parliament will, I hope, grant the Bill as a signal that we expect Mr. Gordon's case to be expedited. I, for one, will follow progress with interest.

I commend the Bill to the House.

9.40 am

Mr. Edward Garner (Harborough)

I am most grateful to be called to speak, not only because I wish to support the hon. Member for Sunderland, South (Mr. Mullin) in ensuring the Bill's passage but because, like him, I take a great interest in miscarriage of justice cases. The hon. Gentleman knows, as other Members of the House who were Members before 1992 may know, that my predecessor as Member for Harborough, Sir John Farr—now sadly dead—took a great interest, with the hon. Gentleman, in the case of the Birmingham Six.

I hope that I do not embarrass the hon. Member for Sunderland, South when I say that that was a most unusual marriage of minds. The hon. Gentleman is a radical journalist and a member of the Labour party and, apart from being a civilised person, has little in common with my predecessor—a farmer and a business man of the old school, who one might think would have no interest whatever in the misfortunes of the Birmingham Six. However, at least some of them ended up in Gartree prison for a while, which is in the Harborough constituency, and as a result of his going to meet and speak with some of the Birmingham Six, Sir John came to understand that there might well have been a miscarriage of justice in that case. Without the work of the hon. Member for Sunderland, South, with the help of my revered predecessor, the Birmingham Six might have been in prison to this day.

I come at this issue from a personal position of great interest in the justice system. I come at it as a practising member of the Bar—albeit I do not practise in the criminal courts except as an assistant recorder—and, I hope, as someone who generally is interested in injustice and putting right things that have gone wrong.

If the intervention that I made on the hon. Member for Sunderland, South does anything, it shows that if one man still lives who has or may have suffered a miscarriage of justice as a result of a drafting lacuna in the Criminal Procedure (Insanity) Act 1964—which changed the relevant verdict in matters such as this from "guilty but insane" to "not guilty by reason of insanity"—and has been denied a proper review of his case, it is right and proper that the House, irrespective of party differences about law and order and so on, if they exist, should give the Bill a Third Reading.

Mr. David Maclean (Penrith and The Border)

Surely my hon. and learned Friend does not consider this case to be a priority for the Criminal Cases Review Commission? As the hon. Member for Sunderland, South (Mr. Mullin) said, Mr. Iain Hay Gordon is at liberty, whereas others whose cases need to be reviewed are still in prison. In those circumstances, does my hon. and learned Friend agree that this case, although deserving, is not a priority?

Mr. Garnier

I do not know whether our deliberations today will order the commission's priorities. However, if the Bill becomes law, it will allow the Criminal Cases Review Commission to consider the case. Despite the willingness of the Northern Ireland Court of Appeal to consider the verdict in the case of Mr. Iain Hay Gordon, it found that, by virtue of the drafting aberration in the 1964 Act, it could not do so. It is not for me, for the House or for the Minister to tell the Criminal Cases Review Commission the order in which to consider cases.

I have a particular interest in a case involving the M25 murders. Just as Sir John Farr, my predecessor, went to meet and had dealings with members of the Birmingham Six who were temporarily resident in Gartree prison, I have had dealings with Mr. Raphael Rowe, who is no longer imprisoned in my constituency but was for some little time during the previous Parliament. As a consequence of representations that his lawyers, he and his fellow defendants made to me and other Members of Parliament—I am thinking in particular of my hon. Friend the Member for Mole Valley (Sir P. Beresford) and my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe)—

Mr. Deputy Speaker (Mr. Michael J. Martin)

Order. I advise the hon. and learned Gentleman that he may be going wide of the Bill before us, because he is dealing with cases that would not be affected by the Bill.

Mr. Garnier

I apologise, Mr. Deputy Speaker. I was seeking to show that the Criminal Cases Review Commission may have to deal with a number of cases as a consequence of this legislation—although not many—but that it was not for us to order its priorities. I was merely illustrating that by mentioning the case with which I had to deal. I have approached the Criminal Cases Review Commission on behalf of Mr. Raphael Rowe, and I am happy to say that, at last, that case has been referred to the Court of Appeal. It is not for us to say to the commission, "Look at this case before another", and it is not for us to tell the Court of Appeal how to order the list of referred cases.

As the hon. Member for Sunderland, South said, the Bill comes to us with a good degree of all-party and non-party agreement from the other place. It was first introduced in 1998, but fell as a result of lack of time. Fortunately, Lord Ackner was able to reintroduce it in March 1999, and the record is there in the Lords Hansard for those who wish to see how unanimous was the support for this small but important Bill. I invite my hon. Friends to join the hon. Member for Sunderland, South in supporting it.

The Bill introduces an entirely necessary, but humane and civilised way of righting a wrong. The wrong revealed was that in the case of Iain Hay Gordon. He was caught by the drafting error or omission following the amendment of the Trial of Lunatics Act 1883 by the Criminal Procedure (Insanity) Act 1964, which simply changed the name of the verdict in cases such as this but had no real bearing on the stigma or status of the individual defendant.

For all I know, Mr. Hay Gordon may have killed the lady in question in the early 1950s. I believe that the hon. Member for Sunderland, South is one of those who think that he probably did not or may not have done. In any event, it seems wholly wrong that a person should be denied access to a review procedure by reason of an obvious drafting omission or error in the 1964 legislation.

The matter touches on the way in which we view the insanity defence. As I understand it, the vast majority of prosecuted mentally disordered offenders in this jurisdiction—England and Wales—are convicted rather than excused, and in most cases, mental disorder does not negate criminal responsibility, but instead may lead to treatment in the form of a hospital order. Moreover, the practice of punishment presupposes the very responsibility that the legally insane lack. Therefore, as none of the purposes behind punishment can be legitimately applied to the person who was judged to be insane at the time of committing the offence, exculpation should follow. Hospitalisation presupposes responsibility for the offence and brings with it the stigma of guilt.

For the past 45 years or so Mr. Hay Gordon has, in effect, had to live with the stigma of guilt. It is a matter of evidence and a matter of judgment whether he committed the act—of killing the young Miss Curran—in the 1950s. It is also a matter of evidence and a matter of judgment whether, if he did so, he was deficient in mental capacity when he committed the offence.

Mr. Forth

I wish to be clear in my mind, which will help me in my contribution if am able to catch your eye, Mr. Deputy Speaker. My hon. and learned Friend is not saying, is he, that we can or should make any presumption about the innocence or guilt of any individual? I would not expect my hon. and learned Friend to make any sort of assumption. As I understand it, any individual, including the one named, has gone through due process and regrettably—it may not be the position in the case of Mr. Iain Hay Gordon—is presumed to be guilty until due process demonstrates otherwise. Surely my hon. and learned Friend is not basing his case in any way on any presumption that there has been some sort of miscarriage of justice.

Mr. Garnier

My right hon. Friend is partly right. He is right not to assume that I am making a presumption. Instead, I am advancing an argument. I hope that it is one that commends itself to the hon. Member for Sunderland, South. It is my belief that Mr. Iain Hay Gordon is being denied access to justice. Those who post-1964 or 1965 who—I use the language loosely—committed the act but were insane at the time have access to the Court of Appeal criminal division. Now, since the passing of legislation under the Conservative Government, they have access to the Criminal Cases Review Commission. However, the defendant in the Northern Ireland case does not.

It seems unjust and unfair that as a result of a legislative error in 1964, Mr. Iain Hay Gordon, who I understand is in his early 70s—

Mr. Maclean

He is 66.

Mr. Garnier

I think that he was about 21 at the time. He has had to live right through to the end of the century believing in any event that he was innocent of the crime. On top of that, he has had to bear the baggage of being publicly considered to have been insane. It is bad enough to be unfairly convicted of a criminal offence as serious as murder. To be excused for what he did because he is said by the courts to have been insane must be doubly anxious-making. On top of that, this poor man has been denied access to appeal proceedings, simply because the 1964 legislation did not contain about half a dozen words.

In my view—my right hon. Friend may take an entirely different view for legitimate reasons that he may expound to the House—and from where I stand, I do not consider what has happened to be right, and I want to do something to correct the position.

Mr. Forth

My hon. and learned Friend has referred to the stigma of insanity. Surely we cannot have it both ways. If we assume—I may wish to challenge this if I am given the opportunity to do so—that insanity is an exculpatory or mitigating factor, which I have always had doubt about, and in a peculiar way the accused receives the benefit of that, which in the days of capital punishment would have been a benefit, very dramatically, can we at the same time regard insanity as a stigma? After all, it has been used as a reason for not blaming somebody. Is my hon. and learned Friend in any way trying to have it both ways?

Mrs. Maria Fyfe (Glasgow, Maryhill)

On a point of order, Mr. Deputy Speaker. The purpose of the Bill is to put right an unintentional fault in the law. It has nothing to do with whether my constituent, Iain Hay Gordon, was guilty of the offence or whether he has or has not been insane at any time. The Bill will put right a fault in the law, and that is what we are trying to do. I look forward to our doing it.

Mr. Deputy Speaker

We cannot have a general debate about insanity. However, the case of Mr. Iain Hay Gordon has been referred to in the explanatory notes and the hon. and learned Member for Harborough (Mr. Garnier) is able to rebut or support the intervention of the right hon. Member for Bromley and Chislehurst (Mr. Forth).

Mr. Garnier

I can well understand the frustration of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe). As she says, Iain Hay Gordon is one of her constituents, and I would think that the Bill is supported by the vast majority of hon. Members. It has been supported by all parties and by the retired Law Lord, Lord Ackner, in the other place. I know exactly where the hon. Lady is coming from. I entirely sympathise with the sense of frustration that I detect across the Chamber.

Mr. Forth

On that point, will my hon. and learned Friend—

Mr. Garnier

No. I would be most grateful to my right hon. Friend if he were a little patient. I want to deal with his point about stigma. I hope that my dealing with it will assist us in our deliberations and persuade those who are reluctant to give the Bill a fair passage that there are good grounds for taking a different view.

I do not want to go into general emotions or whether it is a proper matter for sympathy if someone is declared to be insane in respect of a criminal act. That is not my case. There are many things in this life that bring with them no moral opprobrium.

Let us assume that a woman is falsely accused of having been raped. Rape is a hideous crime and the woman can bear no blame. Yet if a woman is falsely accused of being the victim of rape, it is none the less defamatory. I have only to remind my right hon. Friend of the famous libel case in the 1920s of Princess Yusupov against MGM, in which the widow of the young Russian prince, who was falsely portrayed in a film about Rasputin as being defiled by him, recovered what in those days was a huge sum in damages.

If a constituent of the hon. Member for Maryhill, who is the human reason for the Bill, has been falsely accused of being insane and falsely accused of being responsible for the killing of Miss Curran, that is a stigma which he is entitled to see removed. If the Bill gives him access to the Criminal Cases Review Commission and to the Court of Appeal as a consequence of a referral by the commission, that seems a good end and one that the House should applaud. Indeed, it should seek to do everything in its power to bring about that end.

The hon. Member for Sunderland, South expressed a few misgivings about the speed with which the commission has been able to deal with cases. He mentioned a backlog. I know that the commission, in its submissions to the Home Affairs Committee, of which the hon. Gentleman is the Chairman, said that it needed a great deal more resources and more caseworkers so that it might speed up the work in which it is engaged. I think that it put in a bid to the Home Secretary for an extra £1.3 million. I understand that the Home Secretary scaled that down to about a third of a million pounds. I may be wrong about that, and the Minister or the hon. Gentleman may be able to correct me.

Mr. Mullin

After representations from a number of people, including me, the commission received a large part of what it was asking for. It is in the process of recruiting many extra caseworkers. It may not have everything that it wants but it should be able to make considerable process in reducing the backlog.

Mr. Garnier

I am pleased to hear that. The cases that will benefit from the Bill becoming law must be very few in number. There will not, therefore, be a long queue, at least in this discrete area of cases that may or may not need to be referred. Perhaps the Minister will be able to tell us. I apologised to the hon. Lady privately because I may not be present when she replies, if she is to do so, because of a constituency engagement in Leicestershire—quite near Gartree prison, as it happens—at midday. I apologise to her, to you, Mr. Deputy Speaker, and to the House if I am not in my place to hear the concluding remarks.

The additional money and caseworkers of which the hon. Member for Sunderland, South has spoken will be vital, but the requirement will not be much added to by the Bill. If my right hon. Friend the Member for Bromley and Chislehurst has so far heard only of the case of Mr. Iain Hay Gordon, and if he is complaining about these matters, he has little to worry about.

As at the end of April 1999, as I understand it, the Criminal Cases Review Commission had 444 cases under active review, but it still had 1,176 cases awaiting review. That is a bad set of figures. I hope that, with the Minister's agreement, the money to which the hon. Member for Sunderland, South, the Chairman of the Home Affairs Committee, referred will assist the commission in dealing with the backlog.

I am told that at the end of December 1998, the length of time that an applicant had to wait for a detailed review of his or her case averaged two years. Mr. Hay Gordon has been waiting since 1952 or 1953. 1952 was the year in which I was born—forty-six and a half years ago. If I were Mr. Hay Gordon, I would be the first to approach my constituency Member of Parliament and invite him or her to press for the Bill. I am delighted that the noble Lord Ackner in the other place was quick to take up that cause.

The House has a history of passing some legislation as a result of a knee-jerk reaction. I shall not list the Bills that the present Government or the Government whom I supported passed in response to press campaigns and single-issue pressure groups. There have been some good Bills that may seem to benefit only one individual. This is one such Bill. Whereas the other place allowed it to be properly considered, with all-party agreement, I trust that the House—

Mr. Maclean

I hate to correct someone as distinguished as my hon. and learned Friend, but the 15 or 20 minutes discussion in the other place was not quite full consideration. It behoves us today to give the Bill more time than that, as we are dealing with a crucial issue of justice relating to a human being. That is no criticism of the other place, which came to the correct conclusion in passing the Bill to us. We need to consider it properly.

Mr. Garnier

My right hon. Friend has his views on the matter, which he must defend if he catches your eye, Mr. Deputy Speaker.

On the question of time, I am bearing in mind the forty-six and a half years that Mr. Hay Gordon has awaited the opportunity to go before some form of appellate jurisdiction. I am bearing in mind, too, the other cases, about which we may not know, of people who were convicted of being guilty but insane between the end of the second world war and the enactment of the mid-1960s legislation. I am bearing in mind the ease with which Parliament, which is sovereign, should be able to pass a relatively self-explanatory, humane and civilised Bill.

I do not want to provoke my right hon. and hon. Friends into taking up more of the time of the House by intervening on me. I urge them to consider carefully what we are about, and the advice that we have received not only from the hon. Member for Sunderland, South, the Chairman of the Home Affairs Committee, but from the distinguished and learned Law Lord, now retired, Lord Ackner.

My right hon. and hon. Friends should consider also the words of our noble Friend Lord Taylor of Warwick, a barrister of some experience in the criminal courts, and of the noble Lord Thomas of Gresford, who has considerable experience both as a solicitor and as a barrister practising in the criminal courts. His remarks in the other place are particularly instructive. I trust that my right hon. Friend the Member for Bromley and Chislehurst, who looks a little puzzled, will study them carefully. There were other speeches there from a layman, our noble Friend the Earl of Portsmouth, who has followed the issue with considerable care.

I know that my right hon. Friend the Member for Bromley and Chislehurst, who is still looking puzzled, may not be a regular reader of The Guardian. I used to work for it; I declare an interest in that respect. My right hon. Friend will find that the issue is not just a lawyers' ramp. It is not just a matter of some half-baked single-issue pressure group getting up and grabbing hold of parliamentary time and legislative power. This is a properly thought-out Bill which requires to be passed into law, and it commends itself to all hon. Members, regardless of their party allegiance.

Mr. Forth

I am grateful to my hon. and learned Friend for indulging me yet again. He is seeking to impress the House with a litany of very important people, and telling us that they think that this is a good Bill. If the matter is as important as my hon. and learned Friend has so eloquently argued, and if it has the support of so many eminent people, why has it taken to long to get here?

Mr. Garnier

My right hon. Friend has been in government. He knows that every Government will have one excuse or another for not finding it convenient to introduce a particular piece of legislation. If something needs to be done, a Government will find time for it to be done. If something does not need to be done, I have found, amazingly, that Governments will find good reasons for it not to be done.

Mr. Forth

Fox hunting.

Mr. Garnier

My right hon. Friend should not draw me on that—especially as I am about to head off for Leicestershire—or I shall be here for a good while yet.

It will be easy for my right hon. Friend, a man of huge Government experience in at least three Departments, to stand up in due course and explain why the Bill should not be given assistance by the Government. It is a private Member's Bill, but it has been given the assistance of Government—or at least, for once, a Government are not hindering a private Member's Bill. If that is the case, it will only add to the feelings of high esteem which I have for the Minister, my London Member of Parliament.

I hope that the hon. Member for Sunderland, South gets his Bill through this afternoon, and I hope that the hon. Member for Maryhill sees her constituent going into the offices of the Criminal Cases Review Commission and to the Court of Appeal and achieving justice. Whichever way that may mean the dice roll, I want him to achieve justice, and I want the hon. Lady to see him achieve justice.

10.8 am

Mrs. Maria Fyfe (Glasgow, Maryhill)

As I mentioned earlier, Iain Hay Gordon is my constituent. His fight to clear his name has been going on for an extremely long time. That is most unfortunate, especially as he does not keep in very good health. He has been desperate to move matters forward so that he can try to clear his name, because he is afraid of going to his death without having managed to do so. That cannot be attempted until the Bill is passed.

The Bill seems to have the support of the entire House. It passed through the other place without difficulty. We are speaking of a minor amendment which arises because of an earlier error. It is clear that for the sake of justice and right, the Bill should go through today.

Having waited so long for Parliament to do what is right, we have a chance today to put right a grave wrong to my constituent. He will be extremely grateful to my hon. Friend the Member for Sunderland, South (Mr. Mullin) and to those who have taken up the matter in another place.

The Criminal Cases Review Commission has been in correspondence with me. I know that a large number of other cases are awaiting its attention, but I, too, appeal to the commission to get on with my constituent's case once we pass the Bill today, because of his age and the fact that he has had this hanging over his head for so many years. Today the House has a chance to unite and do the right thing. Let us get on and do it.

10.9 am

Mr. Peter Luff (Mid-Worcestershire)

I pay tribute to the hon. Member for Sunderland, South (Mr. Mullin), the Bill's promoter, and to the hon. Member for Glasgow, Maryhill (Mrs. Fyfe), for the way in which she has come to this House on a Friday to defend the rights of her constituent. I have a great deal of sympathy with what has been said and I was intrigued to hear my hon. and learned Friend the Member for Harborough (Mr. Garnier), a distinguished Queen's counsel, setting out his thoughts in detail.

Nothing that I will say this morning signals a lack of support for the Bill, and my instinct is that it should pass. However, I am nervous about the lack of scrutiny that the Bill has received. In total, the report of its scrutiny in another place covered five columns of the Official Report of the proceedings on 23 March. No amendments were made and there was no further debate on Report there. The Bill came here and went through on the nod at the end of a Friday. There was no Committee stage—it was taken at the same time on the Floor of the House.

This morning is the first opportunity that the House has had to discuss the implications of the Bill. Therefore, my remarks on Third Reading might be longer than would normally be my practice. It is important that measures of this kind are properly tested, particularly when the House has had no opportunity to do so before. If we look at the Table, we see all the Bills lined up for consideration today. I have lost count of how many there are.

Mr. Forth

Too many.

Mr. Luff

My right hon. Friend may be right, although I do not have quite the antipathy towards legislation that he has.

Mr. Forth

Nobody does.

Mr. Luff

That is probably true. His antipathy comes from deeply held principles, which Labour Members may not understand. Those of us who have had the pleasure of sharing the Tea Room with him, will know how deep seated is his opposition to legislation. I do not have that opposition to legislation, but a Bill such as this deserves close scrutiny.

In the previous Parliament—for reasons that I perhaps should not discuss—I was invited to reflect at length in Committee on a one-clause Bill. It was a harmless, one-clause Bill, and the Clerks had suggested that no amendment was possible to it. I spent some time studying the Bill and developed a series of amendments, as a result of which the Minister clarified the law in a number of important areas. The lawyers and interest groups that I had consulted expressed their deep gratitude to me for clarifying the law. Even the most harmless and innocuous Bill always gains from proper scrutiny. The House should be nervous of even the best-intentioned Bill being enacted without scrutiny.

Mr. Maclean

Is not another obligation placed on us this morning? We are to pass a Bill that nearly everyone says deals with one specific case—although, theoretically, there could be more. In such cases, we must be careful that we are getting the measure right.

Mr. Luff

Obviously, my right hon. Friend can read my mind. The very next point that I intended to make was that, as I read the Bill's proceedings in another place and the background information, one phrase kept recurring in my mind—hard cases make bad law. That is one of oldest saws in considering legislation.

I have no doubt that the case of Mr. Iain Hay Gordon is a desperately hard case, but this House must not rush—in a fit of perfectly understandable moral eagerness—to put right that case without being sure that we are not doing other injustices in the process. We must be clear about the implications for the bodies affected by the Bill. The Criminal Cases Review Commission lies at the heart of the debate.

Mr. Garnier

My hon. Friend said that we must be careful that the Bill does not produce an injustice in another case. What sort of injustice does he envisage?

Mr. Luff

My hon. and learned Friend invites me to anticipate remarks that I want to make later. In essence, I am asking whether the case that we are discussing is the only one. We have had assurances that it is. How many cases like it might there be in the system?

Mr. Forth

I am certain that I heard the hon. Member for Sunderland, South (Mr. Mullin) say that he thought there might be a few more cases. That is an important point for us all to bear in mind. I agree that if we were dealing with only one case, it would be worrying. There may be more cases, and that leads to the concern about the effect that the Bill might have on other cases—even though we do not know what they are. I hope that that is helpful to my hon. Friend.

Mr. Luff

It is genuinely helpful and that is an extremely important point. Exactly how many cases will be caught by the Bill? That is the injustice that I fear. Understandably, the hon. Member for Sunderland, South expressed the hope that the Criminal Cases Review Commission would give the case priority once the Bill had been enacted. However, the work load of the commission is increasing rapidly and to give this case priority over others—whose merit we simply cannot know—is a matter of concern to me. We are imposing a potentially heavy burden on the commission.

Mr. Mullin

No one is trying to impose a heavy burden on the Criminal Cases Review Commission. The commission wants the power to be able to deal with the matter and will decide the priority to be given to the case—not us. It will still be up to the commission. All that we can do is urge the commission to get on with it, on the grounds that the case has been around for 46 years.

Mr. Luff

The hon. Gentleman is right and I have no wish to argue on that point. The House has had his assurance that that is the case. How are we to know, however, that this case is the only one? Are there other similar inadequacies—

Mr. Deputy Speaker

Order. I remind the hon. Gentleman that we are on Third Reading and we should be discussing what is in the Bill. Perhaps these remarks should have been made in Committee or on Second Reading.

Mr. Luff

With the greatest of respect, Mr. Deputy Speaker, there was no Second Reading and no Committee. That is precisely the problem and that is why we must look at the Bill in a little more detail on Third Reading than would normally be the case.

Mr. Deputy Speaker

Order. I understand the hon. Gentleman's point that there was no Committee, but that is no fault of mine. I am guided by the rules of the House, which are clear. Third Reading is a narrow debate, based on what is in the Bill. What might crop up as a result of the Bill is another matter.

Mr. Forth

On a point of order, Mr. Deputy Speaker. Without wishing to challenge your ruling, you have the discretion to bear in mind that, through an act of good will, the House has rushed the Bill on its way to this stage. However, this is the only opportunity that the House has had to consider the Bill in any detail. Therefore, will you use your discretion and wisdom in allowing more of a debate than might otherwise be the case?

Mr. Deputy Speaker

I can tell the right hon. Gentleman that I always use my wisdom in matters relating to him. I am not saying that we cannot have a debate—far from it. However, the rules of the House tell me that the debate must be confined to what is in the Bill. If the rules of the House change, I—as the custodian of the rules—will look after them. At the moment, however, we must confine ourselves to the rules of the House.

Mr. Luff

You are an effective guardian of the rules of the House, Mr. Deputy Speaker. Perhaps I have been too generous in giving way to colleagues, which has led me down some alleys of which you may not approve. I will now try to return to my notes, which refer directly to what is in the Bill.

The Criminal Cases Review Commission is included in the Bill. Its task is to examine each case impartially and decide whether it would have a real possibility of succeeding if it were given a further hearing in an appeal court. On the basis of what we have heard about the case of Mr. Hay Gordon, there seems to be every chance that it would have a realistic chance of success. I have no doubt that what the hon. Member for Sunderland, South said about the wishes of the commission was accurate.

Helpfully, the Select Committee on Home Affairs—of which the hon. Member for Sunderland, South is the Chairman—has produced a report on the work of the Criminal Cases Review Commission. The report makes a number of recommendations, one of which refers directly to the Bill. As the Chairman of a Select Committee—I see in the Chamber the Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food, whom we seek to hold to account—I know there is always a temptation for a Committee to have it both ways and to wish contradictory things.

To an extent, I see that in the first report of the Select Committee on the work of the Criminal Cases Review Commission, which discusses at length the problems of the commission in prioritising its work and the pressure on its resources. Recommendation 6 states: We accept and support the basic principle that priority is generally given to applications from those in custody. The case from which the Bill arises involves a gentleman who is not in custody. Mercifully, if the case has been mishandled, he is at liberty, albeit with the stain on his character described by my hon. and learned Friend the Member for Harborough. We have to ask whether it is right to pass the Bill, given the Select Committee's wise view that priority should go to those who are in custody and therefore still suffering the wrong of some miscarriage of justice.

The resources available to the CCRC lie at the heart of our consideration today. I freely admit that, until the hon. Member for Sunderland, South intervened, I was not aware that its resources had been increased. It would be extremely helpful to the House in respect of how it should approach its consideration of the Bill if the Minister told us exactly what resources are available to the commission. The notes on clauses—which have been prepared by the Home Office, not by the hon. Gentleman—show how important that consideration is. They tell us: Expenditure on reviewing such cases would have to be found within the planned funding of the Commission. Any expenditure elsewhere in the criminal justice system resulting from an application to the Commission under the Bill, or from a decision by the Commission to refer a verdict of guilty but insane to the Court of Appeal, would similarly have to be found within current planned provision. We have to satisfy ourselves that the case in question, which goes back more than 46 years, is a one-off. Typically, the cases that will be brought before the commission will date back over such a period. Re-examining them at such a late stage would be particularly labour intensive. I am always reluctant to reopen cases of such antiquity. After nearly half a century, it is difficult to go through the background and the evidence to understand the circumstances with clarity. It would clearly be a time-consuming business.

Mr. Forth

Does my hon. Friend agree that not only does that matter have resource implications—that important point may have to be developed—but the relevant material, witnesses, evidence and so on will necessarily be that much less reliable, given the age of the cases? Is not that a factor that we shall all have to bear in mind as we consider the efficacy of the Bill?

Mr. Luff

Characteristically, my right hon. Friend makes a point that I was seeking to make rather better than I would have done. He is right and that is one of the central challenges for the House during its consideration of the Bill. The Minister must satisfy us that the case in question is one of only a very small group. Is her estimate of the number of cases three or four, which was the estimate made by the hon. Member for Sunderland, South when he opened his remarks? If her estimate is 10, 12 or 15, the nature of our consideration would have to change and a much sharper problem would be posed for the CCRC.

Mr. Mullin

I do not want to prolong this agony. I did not say that I knew of three or four cases; I said that I knew of one and that I had heard someone say that there might be two. It is very unlikely that there will be as many as three or four and it is perfectly possible that the case in question will be the only one. The hon. Gentleman talked about assurances that I have given. The assurances that I have given on miscarriages of justice over the years have largely proved reliable.

Mr. Luff

With characteristic modesty, the hon. Gentleman sets out for the House his track record on these matters; I think he has a great deal about which to be modest. He has a good reputation on these issues and I congratulate him on it, but the Bill has not been scrutinised thoroughly elsewhere, so we need to know what assessment the Government have made of the likely work load on the commission that will flow from the Bill. I am told that the commission is adamant that it will not sacrifice thoroughness for the sake of speed. It is right to take that view, but I fear that achieving thoroughness in such a case could be particularly demanding.

In November 1998, the Home Secretary rejected the bid for £1.3 million additional funding. We are told that additional money has been forthcoming, although my information was that the only money available was for information technology. It appears that, as well as capital funding, revenue funding will be available for additional caseworkers. That is good, because the commission is clearly doing important work. I would certainly want my constituents to have access to it in cases of miscarriage of justice. However, the statistics are quite alarming and it is important that the House is aware of them.

I think that my most recent information comes from a memorandum to the Home Affairs Committee from the CCRC; if that is not the case, I apologise to the House. The backlog of more than 1,000 cases is growing at a rate of more than one a day and, by definition, the cases that the commission considers are serious. The backlog is huge and each and every case is a matter of considerable concern to the individual affected by it. Standing here in the Chamber today, I have no way of prioritising the case of Mr. Iain Hay Gordon over those other 1,000 cases.

In its evidence to the Home Affairs Committee last December, the CCRC said: The October 1997 memorandum to the Committee noted the very severe problems that had been posed by the CCRC's initial caseload, but hoped that the case completion rate might soon reach the case intake rate. In other words, the commission's waiting list—to use a topical term from another area of the public policy debate—is growing steadily. The CCRC went on to say that the CCRC casework experience to date, and caseflow analysis, combine to demonstrate clearly that the CCRC cannot achieve casework breakeven, and minimise the case accumulation, on any reasonable timescale unless substantially increased resources are allocated to it.

Mrs. Fyfe

The hon. Gentleman has already been advised that it is not our business to offer the CCRC any order of priority for its work. We are here merely to pass a necessary amendment to the Bill arising from an error that was made at an earlier stage. It is as simple as that.

Mr. Luff

I admire the way in which the hon. Lady is fighting for the interests of her constituent. I want to be persuaded that the Bill should be enacted because her constituent should have the justice that he is lacking and I hear what she says, but the message sent out at the end of his speech by the hon. Member for Sunderland, South was that the commission should give that case priority. The nature of the case suggests to me that he may be right—I do not know enough about the cases before the CCRC to reach that judgment—but if similar cases arose, we would logically have to support the commission giving them priority over other cases, which may be of great importance.

Mr. Maclean

Surely there is another valid point. We are being asked to pass the Bill using a slightly expedited procedure. There has been no debate on Second Reading. The CCRC may not be able to consider the case for three years—when it has cleared its existing backlog—which is an argument for suggesting that the Bill's provisions could be part of a Government Bill next year. We would then have more time to consider such a Bill clause by clause.

Mr. Luff

I hear what my right hon. Friend says, but I do not share that view, although I understand why he has expressed it. I want the Minister to give a clear explanation of why my fears are misplaced. The House would then be able to give the Bill speedy passage, rather than delaying it unnecessarily. I am sure that the hon. Member for Maryhill does not want her constituent to wait another year, even for the opportunity to put his case to the commission. Subject to the assurances that we receive from the Minister, I hope that we can give the Bill speedy progress, but it is important that we understand the extent of the problems that the commission faces as we do that.

On 16 December 1998, The Guardian said: MPs who fear a repeat of the Child Support Agency shambles are to summon Home Office Ministers to explain why they refused a plea for an extra £1.3 million for the Criminal Cases Review Commission to attack the mounting backlog. I do not know whether those words are a briefing from a member of the Home Affairs Committee or the florid prose of The Guardian, but this is clearly a matter of considerable concern to the Committee and it is right to be concerned.

The Bill centres on the Iain Hay Gordon case. We are informed that his may be one of two, three, four, or however many cases, and we have already debated that matter. I have looked at the background to the case and I understand why the hon. Member for Maryhill is so concerned about it. I shall not weary the House with an account of it, because that would clearly be an inappropriate use of our time. I was, however, slightly amused by an article in The Herald of 27 April last year, which states: A political row is brewing over the refusal of the Criminal Cases Review Commission to begin an investigation into an alleged miscarriage in the case of Glasgow man Iain Gordon, 66…Mr. Chris Mullin, the veteran campaigner against injustice and chairman of the Commons Home Affairs Select Committee, has written to commission chairman Sir Frederick Crawford to demand an explanation for the commission's handling of the case…Mr. Mullin, Labour MP for Sunderland South, called for Sir Frederick's resignation when it was revealed last August that the £88,000-a-year chairman of the new body was a freemason in the Gordon case. Mr. Mullin has accused him of appearing to have taken 'a narrow view of your responsibilities and one that is certainly at odds with the intention of Parliament when the commission was established'.

Mr. Mullin

I cannot be responsible for what is in The Herald, but I certainly did not call for Sir Frederick's resignation. I did, at the time of his appointment, express surprise that a Birmingham freemason had been put in charge of this particularly sensitive commission, but Sir Frederick has done a pretty good job during his two years in office and I have no complaint about him.

Mr. Luff

I am not and have never been a freemason, but I am suspicious of the hon. Gentleman's suspicion of freemasons. I was, however, delighted to hear his tribute to Sir Frederick and I am sure that he will be pleased as well. A degree of guilt probably lingers in the hon. Gentleman's mind. It is excellent that he has sought to expunge it by presenting the Bill and recognising that the commission was not guilty of failing to do its duty, but simply did not have the statutory ability to perform that duty.

Let me return to the fundamental point. The Iain Hay Gordon case provides us with a useful example, but we should take it only as an illustration. We should not see it as our reason for acting; we must act on principle. The question of whether Iain Hay Gordon was or was not the victim of a miscarriage of justice is not for the House to consider. It is a matter for the due process that will follow if the Bill is passed. The question that we should consider is the question of access to the powers of the commission. I believe that the House should grant such access only if it is absolutely clear that an intolerable burden will not be placed on the commission.

Is this a single case? Single cases are regularly used to shape law in this place, but I feel that they should be used only to illustrate it. Another question—one that the Minister should answer—is this: what precedent are we setting if we pass the Bill? Are there other lacunae in the wording of the legislation that established the Criminal Cases Review Commission? Are there other issues that need to be addressed? Will passing the Bill give rise to a raft of private Members' Bills dealing with other inadequacies, or is this, as it were, a one-off case of a one-off case?

Mr. Maclean

Nearly everyone who has spoken today has said that the failure to include the terminology "guilty but insane" was clearly due to a drafting error. I have heard no evidence so far that that is so. Perhaps the omission was a deliberate act on the part of the draftsmen or the Ministers responsible. I hope that the Minister will be able to reassure us that it was a technical error and not a deliberate act on the part of this Parliament.

Mr. Luff

My right hon. Friend leads me neatly to my next and—the House will be relieved to hear—final point, which concerns retrospectivity. This is retrospective legislation. Just as hard cases make bad law and the House must be suspicious of them, retrospective cases often cause difficulty, for precisely the reasons that my right hon. Friend has just given. What was in the mind of Parliament when the legislation was passed? Was what it did intentional or unintentional?

Thornton's "Legislative Drafting" defines retrospectivity thus: It is desirable that wherever possible a statute should indicate in express and unmistakable terms whether (and, if so, how far) or not it is intended to be retrospective…Retrospective laws offend against the general principle that legislation intended to regulate human conduct ought to deal with future acts and ought not to change the character of past transactions carried upon the faith of existing law". I know that the Home Secretary shares that view. Almost exactly 13 years ago, during a debate on the Rate Support Grant Bill, the right hon. Gentleman—then an Opposition Member—said: The Government have become slap happy in the use of retrospective legislation."—[0fficial Report, 23 June 1986; Vol. 100, c. 86.] As my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said, it must be clear that we are simply correcting an innocent drafting error, and that there is no matter of substance behind the omission that is identified by the Iain Hay Gordon case.

I expect the Bill to be given a Third Reading today. I suspect that the mood of the House is in favour of it, subject to the assurances that the Minister can give. Notwithstanding what the hon. Member for Sunderland, South said, however, the commission must set priorities for itself. However indignant hon. Members may feel about individual cases, it is for the commission to make the difficult judgments about how it should use its still limited resources in the face of a mounting case load.

10.35 am

Mr. Eric Forth (Bromley and Chislehurst)

I shall continue in the spirit of the excellent speech of my hon. Friend the Member for Mid-Worcestershire (Mr. Luff). A number of points deserve our consideration, given the rather unusual route by which the Bill has reached this stage. If anything, it is even more incumbent on us than it might otherwise be to ensure that we are satisfied about those points before allowing it to proceed. Because it has come from the other place, this is the last opportunity for it to be scrutinised in a considered way and in detail, and for us to discharge our responsibility as one of the Houses of Parliament.

The Bill was considered briefly in the other place. That is no criticism—far be it for me to criticise the methods adopted in another place—but I think it fair to say that the consideration was fairly brief. I think that it is also fair to say that, even at this early stage, a number of important points have emerged. It may have surprised hon. Members that what at first blush appeared to be a Bill of modest scope is already raising significant issues of principle, and I think it incumbent on us to satisfy ourselves about those before we proceed too much further.

One of those points, which my hon. Friend the Member for Mid-Worcestershire touched on, has bothered me considerably. I refer to the vexed question of whether it is legitimate or desirable to legislate on the basis of one known case, or even a very limited number of known cases. It is an age-old question, which has confronted us as a legislature many times over a long period; but that does not diminished its importance. What we are really saying is that, if we are worried about a single case and the existing law does not cover that case adequately, we should—as the hon. Member for Sunderland, South (Mr. Mullin) put it, eloquently and, he thought, persuasively—move as quickly as possible to change the law in order to acknowledge the problem.

That is, in a sense, self-evident, as far as it goes. The danger is that, in some instances, changing the law to deal with one case could put at risk the principles of justice, access to justice and the balance of justice in other cases. We must satisfy ourselves beyond reasonable doubt that that will not happen.

Mr. Maclean

Is my right hon. Friend slightly mystified by the fact that the other place was keen for the Bill to proceed quickly, although it twice rejected a similarly retrospective measure involving only one or two individuals—the war crimes legislation? We had to pass it by means of the Parliament Act.

Mr. Deputy Speaker

Order. We should not start discussing other legislation.

Mr. Maclean

I was not—

Mr. Deputy Speaker

I was under the impression that the right hon. Gentleman was. I apologise. Let me, however, reinforce my ruling that we are not going to go into other legislation.

Mr. Forth

And I shall not answer my right hon. Friend's retrospectivity point now, Mr. Deputy Speaker. I shall deal with it in a moment. Looking at my notes, I find that that formed the second of the points that I wish to cover in my brief contribution, but I want to do justice to the earlier point that I was making. I do not want to weary the House with it, but it is important. I shall answer myself, in a sense, and therefore satisfy, I hope, other Members.

The question I pose is whether it is legitimate or desirable to make a change in the law based on a single known case. To my surprise, when the question was posed to the Library, we got back a considerable list of such cases. I shall not weary the House with the entire list; a few examples will suffice.

The one that all colleagues will remember with affection is the Peerage Act 1963, which arose from the battle of the right hon. Member for Chesterfield (Mr. Benn) to ensure that he was able to renounce his peerage and take his elected place in the House. That is one obvious case. I skip through some of the others. The law was changed in the Grant v. Borg case, which involved overstaying immigrants; after the House of Lords judgment in the Regina v. Preddy case, which involved mortgage fraud and acquiring credit by deception; and in the Thai Trading Company v. Taylor, case, which involved conditional fees.

I make that point only to dispel any doubts that colleagues may have about the respectability, if I may put it that way, of basing a change in the law on one single known case. Therefore, in that sense, I am persuaded, but there is a lingering doubt, which we should bear in mind before we finally dispose of the Bill: that there is no likely risk of the change proposed in the Bill having an adverse effect on our judicial system, access to justice or the probability of justice being done.

Given the particular circumstances of the Bill, its thrust and content, that risk is minimal, or probably zero—of that I am fairly satisfied. Given our duty and responsibility in such cases to consider whether there is a danger or risk, I am satisfied. I mentioned only a few of the precedents because I did not want to weary the House.

Mr. Maclean

I think that my right hon. Friend could be in danger of inadvertently misleading himself, not that he would ever mislead the House. I have studied the precedents, too. Some of the cases that he has mentioned have not resulted in specific legislation, Bills or Acts, but have merely hastened Governments to make amending clauses in other legislation that is going through the House. That happened with the Access to Justice Bill after the R. V. Khan case; it speeded up Government legislation. However, there are very few cases—I am familiar only with the Viscount Stansgate case—of an Act of Parliament being introduced for an individual.

Mr. Deputy Speaker

Order. We would extend the debate if we went into those matters.

Mr. Forth

I am grateful, Mr. Deputy Speaker. You have let me off the hook. When I am under scrutiny from my right hon. Friend the Member for Penrith and The Border (Mr. Maclean), I am always grateful for any escape route that is offered to me, which I gratefully accept. That brings me readily to the next point that I wanted to cover: retrospectivity. Again, one has to be careful, but there is a duty on us to consider how far one is entitled, or is under a duty, to seek to go back in terms of legislation.

Throughout my studies at university, as far as I can remember them now, and even on coming to the House, I was told that we did not legislate retrospectively here. That was my firmly held view. I clung to that. I thought it an important principle until I got here. Then I found, as one does with many things—I am sure that right hon. and hon. Members will share the experience—that those things that we thought were established, nay, almost sacred principles of the House of Commons and, indeed, of our unwritten constitution, were nothing of the kind, and that we live in a flexible and fluid world at Westminster.

So even the principle of retrospectivity, which I thought was the foundation stone of our constitution, unwritten as it is, is not quite what it seems. The principle that overrides even that one is pragmatism. The other, which I think is still the case, although even that is in doubt now, is that no one Parliament can bind another.

An interesting issue is raised by the constitutional changes that have just been made. There is a question as to whether—

Mr. Deputy Speaker

Order. The right hon. Gentleman will push the boat out a bit too far if he goes into constitutional matters. It is a Third Reading debate on the Bill.

Mr. Forth

I am grateful. I was getting a bit carried away with my argument about retrospection. I had better limit it, as you, Mr. Deputy Speaker, rightly point out, to the Bill itself.

Again, there are precedents. At the risk of provoking my right hon. Friend the Member for Penrith and The Border again, I asked for examples of retrospective legislation. I have a list, but I am now quite nervous about quoting from it in case he picks me up on it. Suffice it to say that the research that I have commissioned suggests that it is permissible, and there are precedents for a retrospective approach when it is deemed justifiable.

The promoter of the Bill said in his admirable speech that, in a sense, that was the whole justification for the Bill. It is based on, we think, a single case. We are not sure; there may be a few others. In a sense, the whole point of the Bill is to look back, to look at the particular circumstances that prevailed at the time, to identify the lacuna, and then to say, "We will now legislate in 1999 for something that happened a very long time ago and for a glitch, or gap in the law, which has only fairly recently emerged, to the disadvantage of one known individual, although there may be others."

Mr. Maclean

My right hon. Friend is correct. There have been numerous examples of retrospective legislation. I had the privilege of studying the list as well, but I could not find any examples relating to individuals. The examples related to teachers' pay and conditions, vaccine-damaged children and London Regional Transport—I could not find one case of retrospective legislation dealing with a single individual.

Mr. Deputy Speaker

Order. I keep coming back to it: we must concern ourselves with the Third Reading of the Bill.

Mr. Forth

I am grateful. That brings me neatly to the issue that was touched on by my hon. Friend the Member for Mid-Worcestershire, which I will characterise as antiquity and, therefore, efficacy. He touched on the point in a different way, admittedly.

Mr. Graham Brady (Altrincham and Sale, West)

Before my right hon. Friend moves from the point about retrospection: I have listened to his arguments with interest, as I have to the arguments of other Conservative Members, but I am not really convinced. Surely any matter of law that deals with matters of appeal is, by its very nature, retrospective. In that instance, he cannot hold it against legislation dealing with appeal matters that it is retrospective. Is it not inevitable?

Mr. Forth

That is partly the case, but there is a problem, which I am coming on to; I hope that my hon. Friend will bear with me. Surely, there is one thing that we have to consider, because we are talking about a proper judicial process, not just a quasi-judicial process. One of the factors that it is incumbent on us to consider with great seriousness is the extent to which we think it efficacious and viable to allow a review to take place, when, by definition—we are defining it in this case, or it is defined for us—the material factors will be so far in the distant past as to be possibly unreliable. That is beyond doubt. As the hon. Member for Sunderland, South pointed out, the Bill arose from events a very long time ago.

Mr. Desmond Swayne (New Forest, West)

Is it not for the review to discover whether the facts are uncertain, or too long ago? It surely should not be denied the opportunity to consider that case.

Mr. Forth

I am grateful to my hon. Friend, but I do not think it is as obvious as he suggests. I had the same problem in respect of the war crimes legislation some years ago and I would contend that when one is dealing with events in the distant past, the evidence becomes less reliable. As my hon. Friend points out, there is an element of judgment and we are making precisely that judgment today. In making this proposed change in the law and inviting a review process which inevitably will have to deal with events in the distant past, we must consider how comfortable we are with the likelihood that that will lead to a proper process of justice.

I hope that the hon. Member for Sunderland, South will sum up the debate. I could almost write his speech for him now—or at least part of it. I suspect that he will say that he has been involved in a number of cases that deal with exactly this matter. That might set my mind at rest as it is an important factor.

Another point that I wish to make in my preliminary remarks involves money. I address these comments mainly to the Minister, who I hope will seek to catch your eye, Mr. Deputy Speaker. We look forward to her contribution as it will help to set in context a number of issues that have arisen in the debate, and no doubt will arise again. However, this is a particular matter for the Minister and I am alerting her and any others who may be in a position to assist.

A key element in the debate are the additional responsibilities that the Bill places on the Criminal Cases Review Commission. It has been admitted—rightly, in my view—that the House has no influence on the priority of the work of the CCRC. That is a matter for its judgment. However, knowing a little about these matters, I suspect that the CCRC could possibly be influenced by the Minister. It might even be influenced by reading these proceedings. It is obviously the wish of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) that it should be so influenced. No doubt she has assiduously made her own representations in that regard and I wish her well with them. However, I wish to make a narrow point about money and staff.

My information is that the commission has calculated that it needs something like 60 case review managers in order to process new cases and reduce the backlog. It has been claimed that the Government have given extra money to the CCRC. In February this year the Government announced plans to give the CCRC an extra £1.2 million to employ more caseworkers.

Mr. Deputy Speaker

Order. This is a debate about a limited extension of the role of the Criminal Cases Review Commission. It is not a general debate on the work of the commission.

Mr. Forth

Thank you, Mr. Deputy Speaker. You have enabled me to move on to the substance of my remarks, having dealt with the preliminaries. I shall now turn to the Bill itself, and I am sure that you will approve of my doing that. [Interruption.]

Mrs. Fyfe

On a point of order, Mr. Deputy Speaker. I do not know what is amusing some Opposition Members, but I do not share their amusement, given that they are discussing the human rights of a constituent of mine. Perhaps they could be brought to order, or bring themselves to order.

Mr. Deputy Speaker

That is not, strictly speaking, a matter for the Chair, but I am sure that right hon. and hon. Members will take on board what the hon. Lady has said.

Mr. Forth

With the greatest charity, let me say that if the hon. Lady were here more often on a Friday she would realise that our proceedings are often a little more relaxed and that that often allows us to proceed on a consensual basis. I would regret that consensus and good spirit being interrupted in any way and I hope that the hon. Lady would not be party to that.

Miss Anne McIntosh (Vale of York)

Let me put the mind of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) at rest. Many of us are here today because we share her concern for her constituent. That is why we support the Bill.

Mr. Forth

I am grateful to my hon. Friend, who reinforces what I said. The way in which the House works on Fridays and deals with private Members' Bills is a little different from the normal run of events, as you know better than almost any of us, Mr. Deputy Speaker.

Mr. Maclean

I would merely point out that on the last occasion the Bill was before the House and those of us who are always here on Fridays expedited its passage through to this stage, I do not recall the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) being here, worried about her constituent's rights.

Mr. Deputy Speaker

Order. I am having difficulty in persuading hon. Members to speak to the Third Reading of the Bill. We cannot debate who was here last Friday or the previous Friday.

Mr. Forth

Indeed, Mr. Deputy Speaker. I shall now get stuck into the Bill itself. I can reassure you, Mr. Deputy Speaker, and the hon. Member for Maryhill that it will not take long.

My references to the Bill relate to my introductory remarks. Clause 1(1) states that the Criminal Cases Review Commission may at any time refer the verdict to the Court of Appeal if subsection (2) below applies. The Bill gives a very wide remit to the CCRC. It is important that we acknowledge that we are broadening the original remit of the commission very widely indeed.

Another concern on which I would welcome the comments of the Minister or the promoter of the Bill—and probably both—relates to clause 1(2)(b). Subsection (2) states: This subsection applies if the Commission consider that there is a real possibility that the verdict would not be upheld were the reference to be made and…it appears to the Commission that there are exceptional circumstances which justify the making of the reference. That is an extremely wide and permissive phrase. It crosses my mind to question whether it is wise to give that degree of latitude. As we all know, exceptional circumstances can be defined in almost any way. There is no limitation and no further reference to that provision. It simply gives the commission the power to make a judgment as to what exceptional circumstances are and links that to its ability to make a reference.

When we give such wide powers, we must be satisfied that there is no possibility that they could be misused. I have no reason to suppose that they would be, but there is always a possibility of that when we give extraordinarily wide powers to what I would—perhaps unfairly—characterise as a bureaucracy.

Mr. Maclean

So far this morning we have been told that on every occasion a simple error of drafting in the original legislation failed to include the terminology "guilty, but insane". This Bill, however, gives the commission powers to refer cases in "exceptional circumstances". We need to know from the Minister whether that provision is widening the existing powers of the commission to deal with other cases that were covered in the Criminal Appeal Act 1995.

Mr. Forth

Indeed. My only regret about today's proceedings is that we have been unable to look a little more widely at the relationship between the parts of the law that deal with guilt and insanity. I should have preferred that, as I have some rather distinctive views on the issue. However, it is probably just as well for me that I am unable today to express those views at great length, as they might be regarded as somewhat eccentric—but then, I am quite used to that.

Nevertheless—under your wise and correct guidance, Mr. Deputy Speaker—we are not allowed to range that little bit more widely, which I do regret, although there will perhaps be another occasion on which we are able to do so.

Given that the issue—the whole matter of how far insanity may be regarded as an exculpatory or mitigating factor—has always been such a contentious one in law, and given how much the Bill touches on that issue, it is, in retrospect, perhaps slightly regrettable that we did not have a full-blown Second Reading debate in which we could have ranged across the issue more widely, or detailed consideration in Committee. However, the House made a different judgment on the matter, and I do not want to rake over that.

I can well appreciate—the hon. Member for Maryhill has left us in no doubt about it—the strength of feeling on the matter relating to her constituent and perhaps to one or two other cases. I have been able to satisfy myself on some of the matters that worried me about extrapolating from individual cases and about retrospection.

I have, however, some lingering doubts about the Bill. The key—other than the introductory speech of the hon. Member for Sunderland, South, which was rather brief—to settling those doubts will be the Minister's reply, and then the final reply to the debate. I hope that those replies will be able to persuade me that my lingering doubts could be dispelled, and that the House should give the Bill our final approval.

Today's debate is the final stage in the Bill's passage, and that is what makes it so important. There will be no going back from our action today or further opportunities to debate the Bill—this is it. If we are to change law in this limited but important way, we must be absolutely satisfied beyond reasonable doubt. I look forward to receiving such satisfaction from the Minister and from the final reply, so that I may join other hon. Members in allowing the Bill to be passed.

11.2 am

Mr. Edward Leigh (Gainsborough)

The debate has been useful. Some interesting speeches have dealt with, first, the amount of parliamentary time devoted to this type of legislation; secondly, the historical precedents of single-case legislation; and thirdly, some interesting arguments on retrospective legislation and how the Bill falls into the mould of previous legislation that Parliament has hitherto thought it right and just to pass. I may well have a few more remarks on those issues, but, as they have already been dealt with extensively in the debate, I do not want the main substance of my arguments to dwell on them.

Colleagues have referred to examples of single-case legislation—I shall not weary the House by referring again to them—but each of those examples had a wider application. Although each of those cases had been brought to the House's attention because of a single hard case, in every one in which Parliament thought it right to act not only one individual, but a wider public benefited from that action. The famous case of the right hon. Member for Chesterfield (Mr. Benn) is an obvious example of that. I think that the Minister really has to address that issue when replying to the debate.

I do not claim to be any great expert on precedent in the House—but we may be embarking on a quite unusual step: passing an Act of Parliament on the basis of a single case, benefiting only that individual. I do not think that anyone speaking in the debate so far has been able to allude to other people who are disadvantaged by current law but will benefit from the Bill, if it is passed. The Bill is, therefore, very much an example of single-case legislation helping a single individual. That is an important, even constitutional, point to which Ministers, in supporting the Bill, will have to refer.

The Bill is very clear on its central point. Clause 1 states: Where a verdict was returned in England and Wales or Northern Ireland to the effect that a person was guilty of the act or omission charged against him but was insane at the time, the Criminal Cases Review Commission may at any time refer the verdict to the Court of Appeal". The Bill goes on, in clause 2(2), to state: In their application to such a reference by virtue of subsection (1) above, sections 13 and 14 of that Act shall have effect— (a) as if references to the verdict of not guilty by reason of insanity were to the verdict referred under section 1(1) above". In passing the Bill, therefore, we shall be saying that the fact that, all those years ago, the jury in the particular case returned a verdict of guilty but insane should now be treated by the courts as if the jury had returned a verdict of not guilty by reason of insanity. So far, all the arguments that we have heard from the hon. Member for Sunderland, South (Mr. Mullin), and which were adduced in the other place, seem to suggest that there is no difference between those two concepts; they are the same—and that if a jury were considering those matters now, all these years later, it would feel that there was no difference between the two concepts. Before the House passes the Bill, we have to be absolutely convinced that those arguments are true.

There has been much learned debate on the nature of insanity, a matter that has exercised profound legal experts. From my reading of the issues surrounding the specific case, however, there has been no fixed outcome of that learned debate, or definite conclusion on the nature of insanity as it applies to criminal cases. An article by R. D. MacKay, for example, entitled "Mental Condition Defences in the Criminal Law", states: Perhaps more than any other area of the criminal law, the insanity defence generates heated discussion and debate. The literature discussing the insanity plea is immense, and reform proposals are continuously formulated. In short, there is an ongoing debate about whether the law should recognise that some crazy people ought not to be punished for behaviour which would normally be adjudged criminal. This debate, which tends to ebb and flow in the light of notorious cases, is one which deserves to be within the public domain since the underlying question of whether it is appropriate to excuse a mentally abnormal offender is a question with fundamental moral and social implications. That is indeed true. If we were to pass the Bill, we should perhaps be entering into a new sphere of the debate on criminal insanity.

Those matters were considered quite fully in the report of the royal commission on capital punishment, which reported between 1949 and 1953, Cmnd. 8932. The commission found that only those who have the capacity to act rationally should be held accountable for criminal acts, and that an individual's capacity is sometimes interfered with because of mental illness, which may in turn mean that his behaviour can no longer be viewed as rational. The difficulty is in deciding at which stage such a conclusion may be reached.

I should like, in general terms, to deal with the debate in the other place. We have been enormously helped, as we often are in debates that refer to detailed aspects of the criminal law, by the remarks of the Lords of Appeal, who bring a great deal of knowledge to these matters. Their Lordships have reminded us that the jury in the 1953 case returned a special verdict, under the Trial of Lunatics Act 1883, that the defendant was guilty but insane.

Sir Louis Blom-Cooper, acting on behalf of Mr. Hay Gordon—without going into too much detail, this was a case before the Court of Appeal claiming that there had clearly been a drafting error and that Parliament, in enacting subsequent legislation, must have believed that the two states of mind were the same—said that Parliament, in enacting the words of section 10(6) of the 1995 Act, was not guilty by reason of insanity intended to include the phrase "guilty but insane". Sir Louis's thesis was that the two phrases were interchangeable in essence and intent, and that the change from the first to the second and back again was no more than terminological.

Their lordships seemed to agree with that view. Lord Ackner, who opened the debate in a characteristically forthright and cogent speech, said that this was a simple error of drafting, but it has created a long-standing and tragic absurdity"—[Official Report, House of Lords£ 23 March 1999; Vol. 598, c. 1255.] and that it was quite wrong that Mr. Hay Gordon could not have his case investigated. He therefore believed that the law should be changed. As a result, we have this Bill before us.

All that is clear. We are being asked today to consider this matter as a minor drafting Bill. Nobody, however, has gone back to the original case and I am concerned that we are now dealing with matters that happened a long time ago. We are not sitting in a jury at that trial; we cannot see witnesses and judge their evidence. Is it right, therefore, for us to form a judgment? You, Mr. Deputy Speaker, may say that we do not have to form a judgment—

Mr. Mullin

On a point of order, Mr. Deputy Speaker. Are we supposed to be making a judgment on the Iain Hay Gordon case? That is what the hon. Member for Gainsborough (Mr. Leigh) appears to be inviting us to do. Will you invite him to return to the subject of the debate?

Mr. Deputy Speaker

I have already ruled that the debate should be narrow and tied to Third Reading. On the summary notes that I received, the case of Mr. Iain Hay Gordon was mentioned, so I do not mind the case being mentioned, but it should not be discussed at length.

Mr. Leigh

I was deliberately pointing out that we are not equipped to discuss whether Mr. Hay Gordon was innocent or guilty. I was trying to draw the House's attention to a point that is central to the Bill. The jury heard all the evidence and came to the carefully considered view that the defendant was guilty of the offence, but was insane. We must convince ourselves that that is no different from finding a verdict that he was not guilty by reason of insanity.

That raises some interesting issues. Surely the whole point of the insanity defence is that the defendant is incapable of mens rea. He is incapable of having a guilty mind. Therefore, if his counsel comes to court and pleads that he is insane, the jury does not have to consider in detail whether he was guilty of the offence, because that is irrelevant. He was incapable of having a guilty mind, and all criminal offences—not civil offences—involve the concept of a guilty mind. Once the counsel convinces the judge that the defendant is insane, that is the end of the proceedings.

Perhaps Parliament, in its wisdom in 1883, when it devised the original concept of guilty but insane, had before it a third way: the jury could conclude that the defendant had committed the offence—in this case, he had stabbed a young woman about 37 times—

Mr. Deputy Speaker

Order. The House does not have the authority to re-try a case, especially this morning. We are simply allowing the proper judicial services to do so. We cannot, therefore, concentrate on whether the person in question carried out the acts to which the hon. Gentleman refers. That is for someone else to do.

Mr. Leigh

I was saying that by way of illustration, because I am trying to develop the concept of exactly what Parliament had in mind in 1883 when it introduced the original legislation.

Mr. Deputy Speaker

Order. What Parliament had in its mind in 1883 I would not know. What I do know is that we are supposed to be discussing the Third Reading of the Bill. The hon. Gentleman probably heard me rule that we must keep to the narrow content of the Bill. We cannot extend the argument beyond that.

Mr. Leigh

I shall stop dealing with the facts surrounding the 1953 case. I simply suggest that, given all the arguments about the dangers inherent in Parliament introducing retrospective legislation, we should not instantly conclude that we are discussing a mere drafting error. We should conclude that what happened all those years ago was—possibly, we have no idea—in accordance with the facts as the jury understood them. Now, in introducing retrospective legislation, we are reversing the finding of that jury, which had good reason for acting as it did. So long as Parliament is aware of that, that is all right. We must be aware that it is a major step.

Some inflammatory articles have been written in The Guardian and The Scotsman. What has not been pointed out, however, is that the articles were based on the fact that Mr. Hay Gordon was innocent and that, therefore, his family and the judge must have been engaged in a cover-up. That is an appalling smear on the judge, who, presumably, is long since dead. The publicity surrounding this case has been most unfortunate. I wish that, when people promote this sort of legislation—

Mr. Deputy Speaker

Order. I do not like to keep intervening on the hon. Gentleman, but he is making it difficult for me. The Bill does not mention the publicity surrounding the Hay Gordon case, so the hon. Gentleman cannot discuss the matter. This is supposed to be a Third Reading debate.

Mr. Leigh

I knew when I made that point that I was straying, but I wanted to get it off my chest because I felt so strongly about it.

Having read very carefully this short Bill and the literature surrounding it, my clear conclusion is that it should become law, because there is a real possibility that an injustice was done all those years ago. It is clear from what their lordships said—they know more about it than we do—that there is no other way of righting the wrong.

However, Parliament should be aware that it might be a unique piece of legislation and that there may be perfectly cogent reasons why the jury acted as it did.

We may be introducing retrospective legislation changing the verdict in a single case. That may not matter too much, because we will not make the final decision. We will simply enact the Bill, and the Criminal Cases Review Commission will be able to range widely over all the issues in a way that you, Mr. Deputy Speaker, have rightly ruled out of order for us today. We must now pass the heavy burden of reopening such old questions, and we should be fully aware of the wide-ranging nature of what we are doing.

11.21 am

The Parliamentary Under-Secretary of State for the Home Department (Kate Hoey)

I am very grateful to my hon. Friend the Member for Sunderland, South (Mr. Mullin) for his stewardship of the Bill, and I pay tribute to Lord Ackner, who introduced it in the other place, and to Lord Portsmouth, who has long been active in promoting the change that it will accomplish.

I am grateful, too, for the contributions that we have heard this morning. Even though it is a Friday and we have a large number of Bills to get through, we should remember that the Bill had no Second Reading debate in the House, so there are genuine concerns to be dealt with. I hope that the debate has been useful and that we can alleviate any lingering fears.

The Trial of Lunatics Act 1883 introduced a special verdict that the accused was guilty of the act charged against him, but was insane when he did that act. That verdict is known as guilty but insane. Since 1914, the courts have held that the verdict is technically an acquittal, and thus that there is no right of appeal against it. The Mental Health Act (Northern Ireland) 1961 replaced the special verdict with a finding of not guilty on the ground of insanity.

For England and Wales, the Criminal Procedure (Insanity) Act 1964 amended the 1883 Act so that the special verdict became one of not guilty by reason of insanity. In effect, guilty but insane was merely renamed, with the important addition that a right of appeal was introduced against the new finding and verdict; but that was not applied retrospectively to verdicts of guilty but insane.

Mr. Leigh

Is it the Minister's understanding that when a jury returns a verdict of not guilty by reason of insanity, it is saying that the defendant is guilty of carrying out the offence but was insane at the time, or is it refusing to come to a conclusion about whether the defendant is guilty, because it does not matter as he was insane?

Kate Hoey

The crucial thing about the 1964 Act is that it introduced a right of appeal. The Bill is intended to ensure that people who were subject to the verdict before 1964—the one that linked insanity and guilt—can appeal.

The Home Secretary and the Secretary of State for Northern Ireland were given a power to refer the new verdict and finding, but not the old verdict of guilty but insane, back to the Court of Appeal. Under the Criminal Appeal Act 1995, enacted by the previous Government, that power was transferred to the Criminal Cases Review Commission without alteration.

The opportunity to make the change that we are now making should really have been taken in 1995. I criticise no one for that. The right hon. Member for Penrith and The Border (Mr. Maclean) was a Home Office Minister at the time, but he was not personally responsible for the matter, and my hon. Friend the Member for Sunderland, South was involved in setting up the commission. We did not take the opportunity simply because no one thought of it. That is why we are trying to enact the Bill now.

Mr. Leigh

With respect, the Minister has not answered my question. I fully understand that if one is found not guilty by reason of insanity or guilty but insane one should have the right of appeal. We are all agreed on that. My question is whether it is the Government's view that the two verdicts are exactly equivalent.

Kate Hoey

I hope that I can help the hon. Gentleman. Precisely the same facts must be found for guilty but insane as for not guilty by reason of insanity.

Mr. Brady

If a verdict of guilty but insane is referred to appeal, could the insane element alone be struck out, leaving the guilty element, or would both parts necessarily be struck out? If an appeal is against not guilty by reason of insanity and the insanity element is struck out, the not guilty element remains. There seems to be a real difference.

Kate Hoey

I am not a lawyer, thank goodness. The Bill is not about such technicalities. If I am advised of a definitive response to the hon. Gentleman's question, I will let him know today. Otherwise, I shall have to write to him.

As my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) said, Mr. Iain Hay Gordon was found guilty but insane in Northern Ireland in 1953 of the murder of 19-year-old Patricia Curran, the daughter of a senior High Court judge. I was a little girl at the time and that terrible murder took place only a few miles from my family home. I remember the enormous amount of publicity and talk, and there was always something unsatisfactory about the case.

Mr. Hay Gordon was committed to a hospital, where he remained until his discharge into the care of his parents in Scotland in 1960. After the trial, a campaign to clear his name began. At the beginning of 1998, an application was made to the Criminal Cases Review Commission to refer the case to the Court of Appeal. In June 1998, the Court of Appeal in Northern Ireland ruled that the 1995 Act did not allow the commission to refer the verdict of guilty but insane. Of course, its reasoning would have led to the same conclusion in respect of a verdict returned in England or Wales.

It is precisely because the CCRC had to do some work on the case so as to refer it to the Northern Ireland Court of Appeal that the commission already knew something about it. Hon. Members are right to say that the CCRC chooses its priorities for dealing with cases, but, as Mr. Iain Hay Gordon's Member of Parliament has pointed out, presumably the commission will consider the case and reflect on it in the light of its history and special circumstances.

Miss McIntosh

The point that concerns me under the Bill is that it does not clarify sufficiently what level of proof and evidence has to be brought on the particular point that the Minister has raised.

Kate Hoey

I did not quite grasp what the hon. Lady was asking. Will she repeat it?

Miss McIntosh

If I am fortunate enough to catch your eye, Mr. Deputy Speaker, I hope to elaborate on this matter at greater length, but the Bill clearly talks about what should happen if the accused was insane at the time. Under clause 1(2)(a), the CCRC can refer a case because of an argument, or evidence, not raised in the proceedings which led to the verdict". Has the Minister had time to consider what level of evidence and proof the commission and the Court of Appeal would consider sufficient to review the case—either this case or any other?

Kate Hoey

rose—

Mr. Deputy Speaker

Order, again, we are going wide of the subject and extending the case being put before us on Third Reading. [Interruption.] Perhaps the Minister did talk about such matters, but sometimes the Deputy Speaker gives a Minister some leeway, in order to assist the House. Can we now return to the Third Reading debate?

Kate Hoey

Thank you, Mr. Deputy Speaker. What the hon. Lady asked about is a matter for the CCRC. I suggest that she visits the commission, which will give her a full explanation of how it goes about its difficult job.

In the previous Session of Parliament, Lord Ackner introduced a Bill intended to amend the Criminal Appeal Act 1995, to enable the Criminal Cases Review Commission to refer a verdict of guilty but insane to the Court of Appeal, and to give the court powers to hear and dispose of an appeal on such a reference. That Bill was unable to complete its parliamentary passage, but on its Second Reading on 29 July last year, the Government made it clear that we fully supported its intention.

In this Session, Lord Ackner has introduced the present Bill, which has the same aim as the earlier one. It had its Second Reading in another place on 23 March, and was welcomed on both sides of the Chamber. No amendments were tabled, and no peer wished to speak during the Committee stage, so the order of commitment was discharged on 13 April. The Bill had its Third Reading, without debate, on 22 April. Its Second Reading and Committee stage in the House of Commons went through on the nod on 14 May. That is why, as I have already said, some hon. Members wanted to say something on Third Reading.

The Government accept that there is a gap in the law, which the Bill would fill. It is important for the maintenance of confidence in our system of justice—and important, above all, to individuals who believe that an injustice has been done to them—that there should be a means by which verdicts of the courts can be reviewed.

At present, someone against whom the verdict of guilty but insane has been returned has no avenue of appeal. That is the problem for Mr. Iain Hay Gordon. Although that verdict has been replaced, by today's standards the lack of an appeal right is an injustice—no less so for being a long-standing one. It seems particularly unjust when we remember that there is a right of appeal against the finding or verdict of not guilty by reason of insanity.

It is always difficult to give exact numbers, but it seems that there is only one other such case besides that of Mr. Iain Hay Gordon, and there are not likely to be more. Moreover, there is no definite evidence that if the Bill is read for the Third time, the person concerned will use the change in the law to appeal. We are certainly not opening a floodgate.

I understand that if the Bill becomes law, the Criminal Cases Review Commission will carefully consider where Mr. Hay Gordon's case fits into the range of cases with which it is dealing. It may decide to give that case priority, or it may not; I am sure that its staff will read carefully what has been said in the House.

Mr. Swayne

Does the hon. Lady accept that the number of cases to which the Bill may give rise is immaterial? If justice requires that a remedy be provided, even for only one case, is that not sufficient to merit the change in the law?

Kate Hoey

The hon. Gentleman is absolutely right. That would be my view, and, I think, that of all hon. Members. If the law needs to be changed to prevent one case of injustice, that is worthy of a change in the law. The hon. Gentleman may have missed the fact that earlier this morning there were some discussions about the CCRC's resources. I shall not talk about that now, Mr. Deputy Speaker, apart from saying that we increased those resources by 15 per cent. this year, and there are now more workers in the commission. However, this case will not make a huge difference to the CCRC's work load or the resources that it will need.

I pay tribute to the work of my hon. Friend the Member for Sunderland, South in the Home Affairs Committee, which recommended in its March report on the work of the Criminal Cases Review Commission that a fair passage should be given to this uncontroversial measure. The Government have sought to facilitate that, as have hon. Members on both sides of the House. I have had some correspondence with the right hon. Member for Penrith and The Border, who has been helpful throughout. My officials kept closely in touch with Lord Ackner about the present Bill, and the Government are satisfied that it is properly drafted to achieve its objective and correct the long-standing anomaly.

I commend the Bill to the House as a useful and uncontroversial measure that has the Government's full support.

11.38 am

Mr. David Lidington (Aylesbury)

When the Bill was debated in another place, my noble friend Viscount Bridgeman said that the Opposition would welcome and support it, and I am pleased to repeat that welcome and that support for the Bill today. As my hon. Friend the Member for New Forest, West (Mr. Swayne) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) said earlier, even if the Bill were designed simply to provide justice for one citizen of our country, that would be justification enough for it.

However, the case of Mr. Hay Gordon has done more than reveal a potential injustice to one man; it has drawn attention to a gap in the law, and to the existence of a category of people who, through legislative oversight, are denied the right of appeal that we would consider just and necessary for any citizen convicted of a criminal offence.

As the Minister said, the difficulties can be traced back to the interpretation placed on the Trial of Lunatics Act 1883 by the House of Lords, which in 1914 ruled that a person found guilty but insane was deemed by the courts to have been acquitted, because the person lacked the guilty mind required for him to be convicted of an offence.

As the verdict of guilty but insane was equivalent to acquittal, it followed that there could be no right of appeal, as in law there was no guilt. That gave rise to the crazy situation in which a man could have been labelled both guilty and insane by a court of law, but have no right of appeal, whatever new evidence or legal challenge might in other circumstances have been available to him.

In the 1960s, as the Minister said, Parliament decided to abolish the verdict of guilty but insane and to substitute the verdict of not guilty by reason of insanity. At the same time, it introduced a right of appeal against such a verdict.

Mr. Leigh

My hon. Friend described the situation as crazy, but perhaps it is not so crazy. Did not the Court of Appeal determination mean that the original verdict in effect found the accused to be not guilty, as he could not possibly have had the mens rea—the guilty mind—to commit the offence? Therefore, does not my hon. Friend agree that the jury and judge involved did not come to a determination about whether the person had committed an offence? No one has addressed that point adequately so far.

Mr. Lidington

It is not for me to inquire today into the state of mind of the House of Lords in 1914. However, it is plainly wrong and unjust in terms of common sense and natural justice for any British citizen in the position of Mr. Hay Gordon—that is, suffering the stigmas of guilt and insanity attached by the public verdict of a court—to be denied any form of redress or appeal. Dickens described the law as "a ass—a idiot", and this provision needs to be amended.

The Criminal Appeal Act 1995, which set up the Criminal Cases Review Commission, provided that any reference by the commission to the Court of Appeal should be treated as an appeal against a verdict. Because the 1914 House of Lords decision meant that there was no right of appeal against a verdict of guilty but insane, it followed that there could be no reference of such cases by the commission to the Court of Appeal.

That principle was felt to be sufficiently uncertain that Mr. Hay Gordon tested it in the courts. Legislation was discovered to be the only available resort when the Court of Appeal in Northern Ireland held, in its judgment of 30 June 1998, that the 1995 Act did not allow the commission to make any reference to the Court of Appeal in such circumstances. I am satisfied that that finding demonstrated that there is a gap in the law and that justice is being denied. For those reasons the Opposition are happy to support the Bill.

11.43 am

Mr. Peter Brooke (Cities of London and Westminster)

I shall be extremely brief. I immediately declare an interest, in that I have a long-standing friendship with Sir Frederick Crawford, the chairman of the Criminal Cases Review Commission, whom I have known for almost as long as Mr. Iain Hay Gordon has been seeking to have his case re-examined. I thought that the hon. Member for Sunderland, South (Mr. Mullin) paid Sir Frederick a very handsome compliment, given the earlier controversy that surrounded him.

The second interest that I declare is that my father was Home Secretary at the time of the Criminal Procedure (Insanity) Act 1964, which is where the possible drafting problem can be found.

As is recognised throughout the House, the Bill is driven by the case of Mr. Iain Hay Gordon, who has been a constituent of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) for as long as she has represented that constituency. I wish to add a brief but poignant footnote to the case.

My advancing years mean that my memory is becoming increasingly unreliable, but I remain convinced that I, too, had a constituent called Mr. Iain Hay Gordon. I am seeking to verify that, and it is of course possible that the man whom I recall bore the same name as the constituent of the hon. Member for Maryhill by total chance. I shall not go into the details of my former constituent's case, although I well recall it, and he is certainly no longer my constituent. However, as I know who his landlord was, I shall pursue the matter to resolve my curiosity, and the hon. Lady has kindly told me that she will send me a copy of her constituent's correspondence. The man whom I remember had pellucidly clear handwriting, which I would recognise instantly.

I say that my footnote is poignant because the constituent about whom I have spoken never raised with me the issue underlying the Bill. If he had, it would have immediately struck a chord with me, because of my father's role in 1964. If by any chance this is not a coincidence of name, it is a sad irony that he did not raise the matter with me.

However, whether or not I was ever the Member of Parliament representing the Iain Hay Gordon who is now the constituent of the hon. Member for Maryhill, I totally support the principle of the Bill. I hope that Mr. Iain Hay Gordon's disability can now be put right.

11.46 am

Miss Anne McIntosh (Vale of York)

I am delighted to lend my support to the Bill. Although I was charmed by the Minister's invitation to visit the Criminal Cases Review Commission, the hon. Lady ought to know that, at the end of April, there were 1,176 cases awaiting review, and 444 under active review, so I doubt whether the commission would welcome fact-finding visits from Back Benchers. Our aim today is to fill a loophole in the law and to expedite the correction of miscarriages of justice.

It is ironic that we should be considering a case involving a Scot, now living in Scotland, who it is alleged committed an offence in Northern Ireland for which he was subsequently convicted. The provision that the Bill will correct covers Northern Ireland but not, happily, Scotland. Perhaps the moral is that we would not be here today had the offence been committed in Scotland.

A couple of specific points are neither covered by the Bill nor clarified in the explanatory notes. The verdict commonly referred to as guilty but insane under section 3 of the Trial of Lunatics Act 1883 invites a question that I have tried to pursue with the Minister today and which I shall take up again in writing.

The question of whether the accused was permanently insane or only temporarily so has always been left open, as has the bearing on the case of the accused's state of insanity when the offence was committed. I hope that the Minister will clarify in writing whether clause 1(2)(a) refers to evidence that was not raised in proceedings but which led to the verdict. Such clarification would be welcome, and would mean that the courts would not have to spend time considering the matter.

The Bill enables the Criminal Cases Review Commission to refer to the Court of Appeal a verdict of guilty but insane reached under the 1883 Act. I query whether the Bill should have set out the degree of proof required by the Court of Appeal in cases referred to it by the commission.

The hon. Member for Glasgow, Maryhill (Mrs. Fyfe) has expressed her concerns about the case of Mr. Iain Hay Gordon. I wish to enter a note of caution. Even though the Bill will receive its Third Reading today, there will still be no quick fix for people in Mr. Hay Gordon's position. The commission faces a huge backlog of cases, as I have described. The problem that we face, even in giving the Bill a Third Reading, is that, in such circumstances, Mr. Gordon and other such constituents will not have their names cleared as rapidly as they would like.

A press release of the Criminal Cases Review Commission of 15 December 1998 informed the Home Affairs Committee that there was at that time a two-year wait for the review of applicants' cases. It is most poignant that Iain Hay Gordon's case will not be expedited. I therefore make a plea to the Minister in that regard.

I record my regret that Mr. Gordon will still have two important hurdles to overcome. First, the case will have to be reviewed by the Criminal Cases Review Commission. Perhaps a subsequent private Member's Bill could facilitate the expedition of cases awaiting review. Secondly, if such a review is successful, Mr. Gordon's case will be referred to the Court of Appeal. None the less, I lend the Bill my support on Third Reading.

11.50 am

Mr. Graham Brady (Altrincham and Sale, West)

I support the Bill, but will raise one or two concerns about it. I am pleased to follow my hon. Friend the Member for Vale of York (Miss McIntosh). I record the thanks that the House should give not only to the hon. Member for Sunderland, South (Mr. Mullin), who is the promoter of the Bill, but to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), who rightly reminded the House of the inadequacy of our procedures for considering such business.

That point was highlighted by my intervention on the Minister. I noted that the hon. Lady was passed a piece of information, and hoped to receive a substantive response to my point, but I waited in vain. She kindly offered to write to me on the matter, but to receive a letter of assurance or clarification after we have completed our consideration of the Bill would be rather inadequate. I shall therefore return to one or two points that concern me.

I have listened to the points made by my right hon. and hon. Friends, particularly those who have some legal training. It occurs to me that this is precisely the kind of debate to which the newly elected Member for Eddisbury might turn his legally trained mind in the very near future—he cannot quite yet contribute to the debate.

I note in passing that in Eddisbury just two days ago, I saw the wonderful spectacle of three Labour Members on one poor gentleman's doorstep, which reminded me of old jokes about psychotherapists changing light bulbs. I do not know how many Labour Members it takes to lose a by-election.

I am entirely happy with the purpose and thrust of the Bill because it will be permissive legislation in the best possible sense. It will allow the process of justice to move forward, which must surely be a good thing. However, because we have not had an opportunity properly to debate the Bill's effects, I have some remaining concerns. The Bill may allow the Criminal Cases Review Commission and the Court of Appeal to improve matters by removing the stigma of insanity, but surely that same stigma is attached to the verdict of not guilty by reason of insanity.

That brings me to the point that I raised with the Minister. There are two separate elements to both verdicts and therefore two findings. One is that the person is not guilty and the other is a matter of the reason why, which implies insanity or incapacity on the part of the individual concerned. That may be an issue in the later type of verdict—not guilty by reason of insanity—following the Criminal Procedure (Insanity) Act 1964, but it is vital to those who have been found guilty but insane.

If the cases of such people—there may be one or more than one, we do not know—are referred to the Court of Appeal by the Criminal Cases Review Commission, what remains if the verdict of guilty but insane is struck down? Is it to be presumed that the person is simply not guilty, or would the court merely be saying that the verdict of guilty but insane was wrong? Despite the court taking the view that the person was not insane, the possibility that the person was guilty remains. Conversely, the court could remove the finding that a person was guilty but leave the question of insanity. I look forward to the Minister's reply.

Kate Hoey

May I clarify the matter? As the explanatory notes state, there is no difference between the verdicts. If a case goes to the Court of Appeal in either of the circumstances to which the hon. Gentleman is referring, it is up to the Court of Appeal to decide whether the person is guilty or not guilty.

Mr. Brady

I am grateful to the Minister, but my concern remains. The Court of Appeal can decide whether the person is guilty or not guilty, but can it decide whether the person is insane or not insane? There is no provision or clarity in the Bill about what is left following the Court of Appeal's addressing of the case. It may throw out one verdict, but does that clear the name of the individual? It may be entirely appropriate in some cases totally to exonerate an individual, but in others it may be appropriate to allow one part of the verdict to remain.

Such a sticking point will not stand in our way in making the Bill law, but to conclude on the thought with which I began, it points to the woeful inadequacy of the ability of the House to scrutinise such matters. It is not acceptable that such an important detail—it may be just a detail—in the criminal law should be dealt with in a very brief Friday morning debate in which we have had very little opportunity properly to scrutinise the implications of what is proposed.

11.57 am

Mr. David Maclean (Penrith and The Border)

I shall take two or three minutes, if I may, to make some remarks about the Bill, as I have been kindly mentioned by several speakers, including the Minister. I had made notes for a much longer speech, but most of the comments that can be made on the law have been made by other Conservative Members and I merely wish to make a couple of quick observations.

We had no debate on Second Reading, partly because some of my hon. Friends were persuaded that in order to deal with this urgent problem—an important issue of the human rights of another human being—we should allow the Bill to pass into Committee, after which we could discuss it here on Third Reading. That goes against all my principles of not allowing a measure to receive a Second Reading on the nod, without proper scrutiny. I apologise to my hon. Friends who rightly complained this morning that they could not participate in a Second Reading debate and that they would have liked to discuss some points in Committee, but if we had insisted on a Second Reading debate the Bill would have been killed, and would not now be before the House.

I am grateful to the Minister and to Lord Williams of Mostyn—an elegant and sincere man. It is wonderful to think that there can be life peers with all the status, breeding and tact of the hereditary peers. Lord Williams of Mostyn was kind enough to invite me and some of my right hon. Friends to the Home Office to explain the purposes of the Bill. I have concluded that, although I may have some worries, it was best to let the Bill proceed so that we might hold this Third Reading debate.

I appreciate that you must uphold the rules of the House, Mr. Deputy Speaker, but some of my hon. Friends who went slightly wide of the tight restrictions on speaking on the Iain Hay Gordon Bill did so in order to cover issues that they could not have covered in debates on other matters.

I welcome the measure, even though there are concerns that it is retrospective, going back, as it does, more than 40 years. There are precedents for retrospective legislation, but the Bill also deals with a single case. There are a few examples of legislation dealing with hard cases, but often they cover a category wider than one person. Those points were discussed in more detail by my colleagues.

Is it appropriate for the House of Commons to pass this legislation in a minute's time, when it will not be able to go to another place for further consideration, in order to deal with one person who is no longer in prison, whose case was heard 40 years ago? I have concluded that in this case it is appropriate; the interests of that human being and the interests of justice suggest that. I therefore have pleasure in supporting the Bill.

12 noon

Mr. Mullin

With the leave of the House, Mr. Deputy Speaker.

There is no reason for me to dwell on the subject. We have had quite a good debate. The point at issue is narrow and I have not detected outright opposition to the Bill from anyone who has spoken. I thought that the right hon. Member for Penrith and The Border (Mr. Maclean) summarised the position perfectly well.

I shall not respond to all the arguments made by hon. Members, as I suspect that some were motivated more by an interest in mink farming than by an interest in the Criminal Cases Review Commission or the Iain Hay Gordon case. [Interruption.] I do not want to wind up Conservative Members, so I shall not make anything of that point.

The right hon. Member for Penrith and The Border said that the Bill was about a single case. That is not quite true. It is about a category of cases of which there are only, as far as I know, two known examples, of which by far the most prominent is that of Mr. Iain Hay Gordon.

The Bill has hardly any implications for resources. There is no need to become bogged down in the Iain Hay Gordon case, because the commission, not Parliament, will decide whether to refer the case back, and it is for the commission to decide what priority to give it, although in my view the circumstances are so exceptional that it should be dealt with as swiftly as possible. The commission has probably also reached that view.

Even assuming that the commission refers the case back to the Court of Appeal, Mr. Hay Gordon has another fairly high hurdle to surmount, which is to persuade the Northern Ireland Court of Appeal to quash the conviction. I shall watch carefully how the Northern Ireland Court of Appeal deals with the case. That court has a reputation for being—I put it generously—rather conservative in this area. It is perhaps under old management—unlike the British Court of Appeal, which, over the years, has suffered a few serious shocks which have caused it to look with a slightly more open mind at some of the cases coming before it. I hope that that process is now finding its way over to Northern Ireland and that Mr. Iain Hay Gordon will benefit.

As I detect no real opposition to the Bill, it remains for me to commend it to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed, without amendment.