ADMISSIBILITY OF EVIDENCE IN CRIMINAL PROCEEDINGS (Hansard, 12 May 1999)

§ Mr. Douglas Hogg (Sleaford and North Hykeham)
I voted against Second Reading, not without some doubt because I recognised that the Bill is designed to address a sensitive and real concern, namely the anxiety of those who have lost friends and relatives to know where the latter have been buried. That is an understandable human emotion, with which I have the utmost sympathy.
Clause 3 lies at the heart of the Bill. If it is too wide or wrong, the Bill is wrong. Its effect is plain. It will prevent any evidence, other than evidence for the defence, being used or admitted in criminal proceedings resulting from the discovery of the remains or the disclosure of the information. We are giving an amnesty in respect of those who have committed murder in circumstances that are covered by the Bill.
The matter goes perhaps wider than hon. Members fully appreciate. Under clause 3, where a person makes a disclosure that leads to the finding of remains where there is evidence, the evidence, whether from the disclosure or from the remains, is not admissible against the person who made the disclosure. That is clear, but it is also true that the evidence, whether it takes the form of a disclosure or of the remains, is not admissible in other criminal proceedings against third parties who have not themselves been privy to the disclosure. In fact, it goes further than that. The evidence involved in the disclosure or in the remains is not admissible in respect of offences that might be shown not to be related to the discovery of the particular remains. Therefore, if there was evidence arising from the fact of the disclosure or its circumstances, or from the remains, that showed that some third party had committed some other murder—not itself the subject of the disclosure—such evidence would not be admissible either.
I am bound to say that I am very uneasy about the principle of this amnesty—that is what it is—and, furthermore, about the scope of what is being proposed. Of course, I understand that, in the context of the agreement in Northern Ireland, it is highly desirable to make progress. I understand, too, the natural anxiety on the part of friends and relatives of those people who were murdered to know where they were buried—I began with that point. At the same time, we are entitled to assert a public interest and I am far from clear that, in principle, such a public interest should be granted by the Committee. The question is not so much whether that is right in principle—we could hold different views as to that—but whether it is right at present. I wonder whether the terrorist organisations in Northern Ireland, especially the IRA, have done enough to justify the granting of an amnesty of this kind—even assuming that an amnesty should be allowed in principle, if the agreement were making progress. I do not think that that is the case.
I am someone who has supported the Northern Ireland agreement; I have defended the release of prisoners—sometimes against the views of members of my Front Bench; I have accepted that decommissioning was not an explicit condition precedent of the agreement and I have defended that position. However, the point has now been 349 reached when the House of Commons must stand back and ask how much further progress it is proper to make without substantial movement by the IRA or associated terrorist organisations. No explosives or weapons have been delivered. More than 50 per cent. of the prisoners have been released, but we have seen nothing more substantial than a partial cessation of violence. The time has come to say, "No more", until many more positive steps are taken by the IRA. Until there is substantial decommissioning and a total cessation of violence in Northern Ireland on the part of the terrorist organisations, especially the IRA, we should not push forward the peace process. In particular, we should not push forward the amnesty contained in the measure before us today.

§ Dr. Godman
The right hon. and learned Gentleman claims that the clause offers an amnesty to killers. A friend in Northern Ireland suggested to me that that was an unintentional consequence of the clause. The right hon. and learned Gentleman was not present earlier when I said that our overriding concern must be to meet and honour our obligations to the families of the victims.
In my brief intervention in this clause stand part debate, I have one question for my hon. Friend the Minister. Allegations have been made that there may be a body in Scotland. If such a body were uncovered there, would the measure be appropriate in relation to Scots law?

The Chairman
I call Mr. John McFall. I apologise to the Minister; I thought that he wanted to speak. The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) was slightly at deep fine leg and I did not quite see him. I call Sir Brian Mawhinney.

§ Sir Brian Mawhinney
Before the Minister addresses the points that have been raised during the debate, will he explain in some detail what is meant by subsection (2) of the clause? If I understand the measure correctly, it states that relevant information provided to the Commission cannot be used in evidence against an individual, but that such information can be used in the defence of an individual. I am not at all clear how it is that the defence of an individual comes to know that the commission has relevant information in the first place. Furthermore, I note in subsection (1)(b) that any evidence obtained (directly or indirectly)"— presumably by the person to whom the body or the remains are handed over, as provided for in clause 4—cannot be used against an individual. However, the evidence can be used in defence of an individual. I do not understand how the defence is supposed to know how to obtain that information, or even how it could know what information exists.
Clause 4, which we shall debate in due course, is the part of the Bill that tells everyone, in legal language, that the only thing that can be done in carrying out tests on bodies is to identify the body. One can only identify who the person was so that the remains can be linked up with the family. Will the Minister answer two questions? First, why does he think that it is not acceptable for information to be used against someone, but that the playing field is not level because it is acceptable for the information to be used in defence? Secondly, and much more 350 intriguingly, how is the defence supposed to know that such information exists, bearing in mind especially that clause 4 states what the examination of bodies cannot do? What can the defence lay its hands on? For example, is it able to obtain information that may come to light under tests covered by clause 4, even though that information cannot be used more generally?

§ Mr. Hogg
I invite my right hon. Friend to put a different question to the Minister. What is the position if someone who has previously been convicted of a murder, but asserts that he or she is not guilty of that murder, believes that the forensic evidence on the body might prove his or her innocence? That person is not an accused, because he or she has already been convicted. Can that person use the now-to-be-discovered evidence to prove his or her innocence under a subsequent review or on appeal?

§ Sir Brian Mawhinney
I could not even put the question as well as my right hon. and learned Friend, much less put it better, so I will allow his question to come, as it were, from my mouth.
I have one final question. Given that the tests described in the measure are permitted to be used for the defence of individuals, does that mean that an individual's defence team can require certain tests to be carried out on remains, on the ground that the information obtained might be useful for the defence, even though clause 4 suggests that such tests would be prohibited in the first place because they go beyond the scope of the legislation? I hope that the Minister will able to answer those questions in detail and with clarity.

§ The Parliamentary Under-Secretary of State for Northern Ireland (Mr. John McFall)
I shall try as best I can to answer the points that have been made. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) will recall that the Conservative Government passed the Northern Ireland Arms Decommissioning Act 1997. He was a member of that Government and did not vote against the measure. Section 4 of that Act contained an amnesty. The Minister of State at the time, Sir John Wheeler, said that any evidence or information adduced as a result of information given to the commission could not be used in criminal proceedings and that, if there was any information or evidence not gained in that way, that could be used. It is not an easy pill to swallow, but it is for those reasons that we have provided that those who come to the commission with information will not be disadvantaged as a result of coming forward with that information; if we did not, the information would not be forthcoming.

§ Mr. Hogg
I understand that point, and it is perfectly fair as far as it goes, but I hope that the Minister will forgive me for making a further observation. If real progress were being made within the peace progress, I would understand that we have to swallow pills that are profoundly disagreeable to swallow. However, if the time comes when one party—in this case, the IRA—has not made what Parliament believes is a sufficient contribution to the peace process by decommissioning, why should Parliament agree to swallow the pill?

§ Mr. McFall
The right hon. Gentleman is also a learned Gentleman and he is cleverly trying to take me 351 away from the issues contained in the clause, but I shall not budge. However, on the matter of the bitter pill, it is the fervent hope of both the Government and Parliament that progress has been made, and we legislate in that fervent hope. As I said on Second Reading, at the end of the day, we are doing this for the sake of the families.
The clause relates to the admissibility of evidence in criminal proceedings. Hon. Members who were present on Second Reading will recall that the provision is included to ensure that information is forthcoming. The information given to the commission and evidence obtained as a result will be inadmissible in criminal proceedings. That is central to the principle that no one should be disadvantaged by the giving of information to the commission.
However, subsection (2) ensures that information given to the commission can be adduced when it would be of assistance to a defendant in criminal proceedings. The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) asked about that provision, which must be seen in the context of ensuring that no one is disadvantaged. An example might be a case in which an individual has confessed to a crime, but his defence is that he was not in fact responsible for it: he might have confessed to carrying out the killing in a certain way, but the evidence is such that the victim could not have died in that way. It would be wrong to prevent an individual from adducing those facts.
The right hon. Gentleman asks how a defence lawyer can know those facts, and that same question crossed my mind when I first read the Bill. The answer is that the commission will receive information and it will then pass that information to the police—the RUC or the Garda. If the police are in possession of information supplied to them by the commission, or of evidence found as a result of a search that would assist the defendant, they are under a duty to make that information or evidence known to the Director of Public Prosecutions. The DPP would inform the defence, who would then be able to request sight of the relevant material.

§ Mr. Hogg
May I put the following point, which relates to clauses 3 and 4, to the Minister? He is, in effect, saying that the prosecution authorities might have in their possession information that they are under a duty to disclose to the defence. However, a case might arise in which the defendant believes that forensic examination of, say, a bullet found in the body of the deceased would prove that it could not have been fired from the gun in the possession of the accused. As I read the legislation as it stands, there is no power on the part of the defendant to insist—whether by court order or otherwise—that the bullet be made the subject of forensic examination. Therefore, my question to the Minister is whether we should, either at this juncture or subsequently, amend the Bill so that there is a power to enable the defendant who believes that forensic evidence would be forthcoming from the bullet to apply to the court for the bullet to be tested.

§ Mr. McFall
No one has been charged with or made answerable for the crimes to which the Bill relates. However, the right hon. and learned Gentleman will appreciate that these issues cause us to stray into 352 clause 4, which deals with forensic testing, and I shall deal with those matters when we debate clause 4. In brief, the coroner has responsibilities in that respect and evidence that has come to light through forensic testing will not be shared, but will remain the responsibility of the coroner. I shall elaborate on that later.

§ Mr. William Ross
I tried to table one or two amendments on this part of the Bill, but unfortunately they fell outside the rules. However, the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has made me look again at the clause, and I think that he is perfectly correct when he draws attention to the fact that it goes far wider than a layman like myself would think on reading it.
The clause states that certain information and evidence shall not be admissible in evidence in any criminal proceedings". It would be one thing if that statement continued with the words "related to that death", but it does not and so covers any criminal proceedings whatsoever. The Government must go away, examine that clause extremely carefully and try to narrow it to cover only criminal proceedings relating to the death in question.

§ Mr. McFall
I assure the hon. Gentleman that the provision has been trawled over. The same principles were enshrined in the Northern Ireland Arms Decommissioning Act 1997, for the reason that information had to be forthcoming. The belief is sincerely held that, if information is to be forthcoming, we have to formulate the legislation in a certain way, and clause 3 reflects that. The clause is simple: subsection (1)(a) relates to evidence that is provided, subsection (1)(b) to evidence that comes to light and subsection (2) states that that evidence will be inadmissible. It is all based on the principle that information must be forthcoming.

§ Sir Brian Mawhinney
I am grateful to the Minister for the start that he has made on answering the questions that I put to him. If I understand him correctly, the answer to my question of how the defence gets to know of the information is that the commission has to tell the police, the police have to tell the DPP and the DPP has to make the information available to the defendant. May I ask the Minister a straightforward, uncomplicated question? Which line or clause in the Bill requires the commission to give information to the police; and is that an unfettered requirement or a fettered one? I do not see such a provision in the Bill, but, if it is absolutely central to the Minister's answer to my question, he is starting to lose me and, I suspect, the rest of the Committee.

§ Mr. McFall
The last thing we want is what should be a serious debate turning into a smart-aleck contest or an academic exercise. Clause 2 relates to the commission and the appointment of commissioners and the explanatory notes refer to provision being made for the commission. The right hon. Gentleman can be assured that, if information is provided to the commission, it will be passed on.

§ Sir Brian Mawhinney
The smart-aleck remark was untypically ungracious of the Minister. The Bill sets up a commission—we are agreed on that. The Minister has told 353 me that the commission must give the information to the police. That is how clause 3(2) will work. I am asking a simple question; I am not interested in the explanatory notes because they are not before the Committee. I am not trying to be a smart aleck. We are establishing a commission that must give information to the police if clause 3(2) is to work. I want to know which part of the Bill requires the commission to give that information to the police. That is a perfectly straightforward question, which follows from the Minister's comments. I am not trying to be a smart aleck or to debate the issue; I am simply requesting some information.

§ Mr. McFall
I apologise to the right hon. Gentleman. I said that we did not want to stray into smart-aleck comments, but I did not mean to implicate the right hon. Gentleman. Clause 3(1)(a) refers to any relevant information provided to the commission. The explanatory notes point out that the clause contains the first key protection for relevant information provided to the commission. It provides that information shall not be admissible in evidence in any criminal proceedings and extends the bar on admissibility to evidence that comes to light as a result of that information being provided. The commission receives the information, which it then passes on.

§ Sir Brian Mawhinney
I am grateful to the Minister. I understand that point. Having followed all the correct procedures, the commission will receive the information—I have no difficulty with that. However, the Committee has been told that, if clause 3(2) is to work and the defence is to be able to use the commission's information, the commission has to give the information to the police, who then have to give it to the DPP, who then has to provide it to the defence. I do not see the "has to" bit in the legislation. I understand that that is the mechanism, but I ask the Minister whether he has legislated to that effect.

§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)
Order. I appeal to the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) to keep his interventions brief. They are far too long.

§ Mr. McFall
Let us take it to the nth degree. The right hon. Gentleman cannot find the "has to" aspect of the legislation, but I urge him to appreciate the intent of the legislation. We are seeking to establish a commission whose function is to facilitate the location of remains. We have given a commitment that that information will be given to the police, who have a general duty to pass it on if necessary. That is the Bill's intention and the Government have given that commitment at the Dispatch Box. It would be very silly to establish a commission but not require the commissioner to pass on any information when the intention of the Bill is to gather information and locate the bodies.

§ Mr. Hogg
I am sorry to press the Minister on this point, but he has not yet answered the questions fully. I hope that he will forgive me for saying that. We agree that, as there will be an amnesty, the accused must have access to information that provides a defence. However, there is a problem in relating clause 3(2) to clause 4. 354 The forensic evidence found with the remains might provide a defence, but the accused will not know that unless he can cause what is found to be examined. Clause 4 prohibits that. Therefore, will the Minister contemplate giving the accused the right to apply to the court to disapply the prohibition in clause 4 regarding examination so as to enable the accused to use forensic evidence in his defence as clause 3(2) of the Bill provides?

The First Deputy Chairman
Order. Before the Minister replies, I appeal to right hon. and hon. Members to keep their interventions brief.

§ Mr. Hogg
On a point of order, Mr. Martin. I do not disagree in any way with your ruling; I simply seek your guidance. Do we have the right to rise again at this stage in the Committee's considerations?

The First Deputy Chairman
The right hon. and learned Member may be called to speak again. I would prefer it if he sought to catch my eye.

§ Mr. Hogg
I am grateful to you, Mr. Martin.

§ Mr. McFall
I have forgotten the question. The right hon. Member for North-West Cambridgeshire referred to the passage of information. There is a general duty to pass information about the commission of a crime to the police under the Criminal Law Act 1967, and that duty will also apply to the commissioners.
The right hon. and learned Member for Sleaford and North Hykeham asked about clauses 3 and 4. If I do not answer his question fully now, I shall return to it when we consider clause 4. He asked whether the accused may seek forensic testing in his defence. There is no ban on testing during the inquest, which may determine how, when and where a person died. As we said on Second Reading, that process will be on the public record. The coroner will hear evidence in public and the defence will know if relevant information is disclosed at an inquest. The inquest verdict and forensic testing may play an essential role in the process and, like all inquest verdicts, they will be a matter of public record. We made that very clear on Second Reading.
The clause has three relatively simple intentions, and I hope that I have answered the questions about it.

§ Mr. Hogg
I am sorry to press this point. There is always a risk that one will press a point that is not of real substance, but I believe that this is a substantial issue. In any event, the Minister can seek the views of his advisers. As I have said, I oppose the amnesty. However, we are dealing with the Bill before us, which provides for an amnesty. I am aware that the clause will be passed, so we must try to make it as effective as possible.
Let us assume that clause 3(2) will be part of the Bill as enacted. I agree that, if we are to proceed in this way, the accused must be able to use the evidence discovered as a result of disclosure of the remains in order to further his defence. However, that information may include forensic material that is discovered from, within or with the remains—for example, a bullet. We might then be able to identify the gun from which that bullet was fired.
The problem is that clause 4, which relates inevitably to clause 3(2), prohibits the examination of the remains. The commission may discover material and inform the 355 prosecution authorities who, in due course, will inform the defence. However, unless some provision enables the defence—or the prosecution, for that matter—to subject the bullet, for example, to forensic examination, no one will know whether it will advance the cause of the defence. I suggest that the accused who wants to use the material in the circumstances postulated by clause 3(2) should have the power to apply to the court for an order allowing the remains or what is found with them to be examined in circumstances otherwise prohibited by clause 4 in order to form a view on whether the material is helpful to the defence and, if so, to use it.

§ Sir Brian Mawhinney
My distaste for clause 3 is not as great as that of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), but, as I have already demonstrated, I am not much impressed by the clause. I take his view that, if we are to have this clause, we ought at least to get it right so that it works.
The Minister has been advised that there is a general law that covers the commission. I am not entirely clear about the consequences that flow from that. First, that body is, by definition, different from others because it is being set up by statute under an international agreement. It would be helpful if the Minister agreed to place in the Library legal advice that demonstrated that such a body, set up out of an international agreement relating to two jurisdictions, not just that of the United Kingdom, is covered by UK law. The Minister told us that it is covered by UK law, but I am not sure that, prima facie, it necessarily is, so it would be helpful to have access to the legal advice on that.
I do not want to take the Minister through all of his earlier reply, but he said that the commission was required to notify the police and then expanded that by saying that the police were to be notified that a crime had been committed. I hope that the commission is required to notify the police of such a crime. Bearing in mind what my right hon. and learned Friend the Member for Sleaford and North Hykeham said and what I said earlier about clause 4, it is not clear from the Bill what the commission will tell the police about the fact that a crime has been committed.
I follow the legal requirement on the police to give that information to the Director of Public Prosecutions, who then has to pass it on to the defence in the case. That seems to be normal procedure. However, what will the DPP tell the defence? He cannot tell them about any forensic testing, because that is prohibited under clause 4. My right hon. and learned Friend has suggested that the Bill should make it clear that the defence could request, through the court, certain tests to be taken, but if he is right—I think that he is, because he has forgotten more about the law than I have ever known—the Bill's logic contains a lacuna.
When the Minister responds to the point made by my right hon. and learned Friend, will he explain in more detail what evidence the commission is required to give the police that might be helpful to the defendant? The answer to that question is, to state it in generous terms, simply not clear from the Bill.

§ Mr. McFall
I shall try my best to respond to those points. First, the right hon. Member for North-West 356 Cambridgeshire (Sir B. Mawhinney) referred to legal advice; he does not accept at face value what the Bill says about that. I shall do my best to ensure that information is placed in the Library.
There was an intensity to the right hon. Gentleman's question about evidence given to the commission. The commission is being established to locate the remains of bodies, and any information given to the commissioners through facilitators will be passed on to the police. The right hon. Gentleman will know that we have asked Sir Kenneth Bloomfield, who has a distinguished public service record, to serve as a commissioner. It is not for me to second-guess every piece of information that he will receive. The right hon. Gentleman should be assured that such an eminent individual will use the sensitive information that he receives in the proper way when passing it on to the Garda and the police. The Bill simply establishes that flow of information.

§ Mr. Thompson
On what grounds will the commission supply information to the police? Clause 5 states: No relevant information provided to the Commission shall be disclosed to any person". Surely that prevents the commission from giving information to the police.
Furthermore, the Minister mentioned the appointment of one commissioner. Will there be only one commissioner, or will another be appointed, from the Republic of Ireland?

§ Mr. McFall
The hon. Gentleman has been present throughout the proceedings, and my right hon. Friend the Minister of State mentioned that there would be two commissioners: one, Sir Kenneth Bloomfield, will be from Northern Ireland and one, who has still to be announced, will be from the Republic of Ireland.
The hon. Gentleman asked about the information that the commissioner will have. We are only passing the legislation at the moment, so I cannot give him an insight into that.

§ Mr. Thompson
I am asking where in the legislation it states that it is incumbent on the commission to supply any information that it has to the police, because clause 5 says: No relevant information provided to the Commission shall be disclosed to any person except in special circumstances, but it does not mention the police.

§ Mr. McFall
It is implicit in the Bill that the information provided to the commissioners has been provided to ensure the location of remains. That would be relevant information—we have given a definition of that term—that would be passed on by the commissioners. The hon. Gentleman will realise that I cannot give him any insight into the nature of the information.
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) asked whether a bullet could be subject to forensic testing and whether a defendant could request forensic testing as part of his defence. The answer is no. Defendants cannot have their own forensic tests carried out, as clause 4 states. I am aware that I am 357 in danger, Mr. Martin, of jumping to clause 4 or clause 5, and I realise that we are dealing with clause 3, but I have been asked questions about clause 4, so I ask you to bear with me.

§ Mr. Hogg
Will the hon. Gentleman give way?

§ Mr. McFall
Will the right hon. and learned Gentleman give me the opportunity to answer his question? Defendants cannot carry out their own forensic tests, but they can use the results of tests conducted for the inquest. That may be helpful to their defence and, under clause 3(2), they can adduce that information.

§ Mr. Hogg
Does the Minister not realise that the ability of the accused to use that information under clause 3(2) may be nugatory unless the accused has the right to require testing, because the material that is obtained in the course of the inquest may be wholly different from the evidence that the defence may want to call if it is to benefit from the provision in clause 3(2)? I therefore suggest to the Minister that he reflect on the clause and work out whether, to make clause 3(2) effective, it would be right to enable the accused to apply to the court for an appropriate order allowing that testing.

§ Mr. McFall
Again, we are getting on to clause 4. If the right hon. and learned Gentleman reads clause 4(1), he will find the six conditions in paragraphs (a) to (f) under which forensic testing is not allowed by anyone except, as subsection (2) states, the coroner. The coroner will make that information public. The answer to the right hon. and learned Gentleman's question is no, because forensic testing on the part of the defendant is ruled out in clause 4(1)(a) to (f).