HC Deb 12 May 1999 vol 331 cc357-64
Mr. William Ross

I beg to move amendment No. 2, in clause 4, page 3, line 16, leave out from 'person' to end.

On the face of it, the amendment looks very simple, as all amendments do. The Committee can get the flavour of it by looking at subsection (2), which states: Subsection (1) does not prohibit a test or procedure the purpose of which is to discover information in relation to an item where the information is sought for the purpose of establishing, for the purposes of an inquest, the identity of a deceased person, or how, when and where he died. When I read the clause, I must confess that I thought that it would be a good idea to take all of it out of the Bill. Unfortunately, amendment No. 14 did not find favour. Amendment No. 2—which was selected presumably because it was the only one of my amendments to clause 4 which fell within order—draws attention to the fact that subsection (2) seems to contradict earlier parts of the clause.

Subsection (1) says: the Commission shall not carry out, or cause or permit anyone else to carry out, a test or procedure in relation to the item the purpose of which is— (a) to discover information about anything done to any person". Surely, finding out, for the purposes of an inquest, the identity of a person and how, when and where he died flies straight in the face of such a provision. There seems to be a contradiction, which must be resolved.

The clause allows tests and procedures to discover how, when and where a person died. Once one has discovered where the person died, one might have some idea who was responsible for his death or where he had been tortured. If bones were broken or fingers cut off, which is not unlikely, one would certainly have some understanding of the suffering before the murder. Yet we are told that we are not supposed to know such things. How is the contradiction to be resolved?

The other interesting matter is that subsection (1) is all about discovering what has happened to the individual: to discover who has been in contact with, or near to, any person or item; to discover where any person or item was at any time (including the conditions under which he or it was kept)", which would include where the deceased was imprisoned, perhaps for some time. The subsection prohibits tests to discover when any person or item was in contract with, or near to, a particular person", which I would have thought would be very useful knowledge if one were to try to prosecute someone for the murder of an important individual. The subsection prohibits tests to discover when he or it was in a particular place or kept under particular conditions"— in other words, what sort of imprisonment the individual suffered. A test or procedure cannot be carried out to discover when or where any item was made". We know that terrorist organisations manufacture certain items for use in their terrorist campaigns, and something like that could be of great use to the prosecution. We are also prohibited from carrying out tests to discover the composition of any item. I have a problem: I want the Government to tell me how they will square knowledge of what is done to a person—the torture or murder—with the scope of subsection ((2). Clearly, the only tests that could be in keeping with subsection (1)(a) are those that will identify the victim. Any other information could be used to prosecute. The Government have clearly decided to avoid that. How on earth are they to resolve that conundrum?

It is clear to anyone who reads the Bill that the Government have done some deal with the IRA to avoid its members being brought before courts and charged with torture and murder. [Interruption.] I am glad to see that the Under-Secretary gives his assent to that remark. The Bill was a consequence of discussions with the IRA, which surfaced fully only on 29 March.

In answering my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis), who asked about the deal with the IRA and the guarantee for bodies, the Under-Secretary said: However, we have the evidence received from the families and others who are willing us to act and the statement made by the IRA on 29 March, to which my right hon. Friend the Secretary of State and the Irish Government have responded. We are legislating on the basis of that information in the sincere hope that the agony of the families will end."—[Official Report, 10 May 1999;Vol.331,c.77.] Clearly, the Government are saying, "Yes, we believe that there is a hard case and therefore we must make the law fit the line," to which, as I have already said, I object.

There was a deal, and contact, either directly or at arm's length, was made with the IRA. The IRA gave certain guarantees, which it has not as yet fulfilled—in this or any other piece of legislation that has been drafted to placate it. The Bill flows directly from the commitments given.

I am also somewhat intrigued by the fact that there is no clause to limit the Bill's powers.

The First Deputy Chairman

Order. Perhaps I should remind the hon. Member that we are considering not the Bill in its entirety, just his amendment.

Mr. Ross

If you had just held your hand for a moment, Mr. Martin, you would have realised that I will be staying completely in order. I was simply referring to the absence of a clause that we normally find in Bills that deal with Northern Ireland or a specific region of the United Kingdom. Normally, there is a clause stating that the Bill extends only to Scotland, Northern Ireland or England and Wales. No such clause appears in this Bill and, therefore, this is not a Northern Ireland Bill, but a United Kingdom Bill. Different laws govern inquests throughout the United Kingdom; they are not, as far as I am aware, wholly alike.

I therefore wonder how a clause will operate when, for example, a body is found in Scotland. Allegations were made at one stage that bodies may have been buried in France. We know that the IRA was active on the continent. There could be a body buried in Germany. Suppose some poor fellow is buried in Germany or France, will this proposed law apply there? Does it apply throughout the United Kingdom? Are the Home Secretary and the Secretary of state for Scotland aboard? Are the new Scottish and Welsh governing bodies aboard? There is a very serious question to be asked on the Bill's extent.

If individuals are found elsewhere, would the authorities that normally investigate a murder—it may have been committed in their territory or a body may have been transported there illegally—such as the police and coroners be free to do so? Such questions must be explored. As the Minister said, the Bill's provisions are implicit. I await answers that defend them.

6.30 pm
Dr. Godman

I do not believe that the amendment is very appropriate. Unlike the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I am not a lawyer, Scottish or English, but I ask my hon. Friend the Under-Secretary to confirm that subsection (1) does not in any way restrict the comprehensiveness of a post-mortem or an inquest held in any of our jurisdictions.

The hon. Member for East Londonderry (Mr. Ross) is right in one regard. If we are talking about the United Kingdom, we must talk in terms of its different legal systems. Scottish procedures are different from those that pertain in England. I hope that my hon. Friend the Under-Secretary will forgive me, but an allegation was made that a body or a couple of bodies might have been buried outwith Northern Ireland—perhaps in Scotland. I received an assurance from my hon. Friend that every means would be sought to co-operate with the Scottish authorities. I simply ask him to place on the record that no attempt will be made to restrict in any way the holding of an inquest, or an examination carried out by a pathologist. I believe that subsection (1) confirms that that will be the case.

Mr. Öpik

It seems to me that the result of the amendment, with the consequent prohibition on testing, would be that any inquest would be kept open due to lack of evidence. I look to the Minister for guidance on that, but, having listened to what the hon. Member for East Londonderry (Mr. Ross) has said, I believe that the amendment would lead to an outcome rather different from that which he intends.

Mr. McFall

I shall focus on amendment No. 2, and then perhaps any other points can be taken up in the stand part debate.

My hon. Friend the Member for Greenock and Inverclyde (Dr. Godman) asked about the situation in Scotland. That is linked to the point that the hon. Member for East Londonderry (Mr. Ross) raised when he asked what would happen if a body was found in Germany. If a body is found in Scotland or England, clause 4 will apply, but if it is found in Germany, it will not apply.

My hon. Friend the Member for Greenock and Inverclyde can see that clause 4(1) provides that there would be restrictions on the actions of people other than the coroner at the inquest, but that subsection (2) contains a qualification to or exemption from that restriction at the inquest.

I believe that at Second Reading we made things reasonably clear when we said that there would be a full examination as to how, when and where the person died and that it would be a public matter, so there would be no inhibition. I hope that my hon. Friend the Member for Greenock and Inverclyde will accept that point.

The amendment would mean that forensic testing, as part of the inquest process, would have to stop at identifying the person. That is a limitation that the hon. Member for East Londonderry is introducing. In other words, he is negating the effect of subsection (2). As a result, tests to establish how the person died and where that happened would not be possible. I do not consider that that would be in the interests of the families, as a coroner has an important role to play with the families by providing reassurance. I know from meetings and contacts that I have had with several coroners in Northern Ireland that the emphasis is placed on the family concerned. I therefore believe that the amendment would place a limitation on their work, and I ask the hon. Gentleman to consider that.

I can assure the hon. Member for East Londonderry that the Bill does nothing to affect a normal inquest process. As I said, that is the aim of subsection (2). If the amendment were made, the circumstances in which a person died would not be discovered by forensic testing, and that would be unacceptable for the families. I assume that the hon. Member for East Londonderry is seeking an assurance from the Government that the Bill does nothing to prevent an inquest from taking its usual course. I can unequivocally provide him with that assurance, if that is what he wants.

Mr. William Ross

In light of the Minister's assurance, and in the hope that we may return to the subject, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Hogg

I am sorry to return to the matter that I have already ventilated, but the Minister did say that the points that I raised on clause 3 stand part might be discussed properly—and perhaps even more relevantly—on clause 4 stand part, so I will trouble the Committee on the matter.

We must return to clause 3. As the Committee knows, I am—broadly speaking—against the amnesty, for that is what the Bill provides. We have already had this exchange, but whether it is an amnesty or not, clause 3(2) provides for a relaxation in its application. I agree with that purpose. It is obviously right that an accused person should be able to use forensic material discovered from the remains, or associated with them, for the purpose of his or her defence. So far, so good.

The problem is that there is nothing in the Bill that enables an accused person to obtain from a court an order—

Mr. McFall

indicated assent.

Mr. Hogg

The Minister is agreeing with me. There is nothing in the Bill that enables an accused person to obtain from the court an order which enables that accused person to have the relevant material subjected to forensic testing. Indeed, clause 4 prohibits that very act.

As a result, an accused person who believes that, within the remains or associated with the remains, there is forensic evidence that will avail the defence, will be unable to subject the relevant material to forensic testing. That being so, the right conferred by clause 3(2) is nugatory. We have given people a right that they cannot enforce. That is dotty.

Unless I have misunderstood the position, the proper way to proceed is to enlarge the disapplying provision contained in clause 4(2), because at present the ability to carry out tests is confined to the coroner within the inquest. We could very well enlarge subsection (2) so that a test may be carried out on the authority of a court, making an order on the application of an accused person.

I am not asking the Minister to give an undertaking here and now—of course he will not do so—but I am asking him to reflect on my suggestion with a view to tabling amendments in another place if he agrees with me.

The matter actually goes a little further than that which I have suggested. I believe that the logic of what I have suggested with regard to an accused person is impeccable, but another situation might arise. A person who is an appellant, or who is seeking a review of a case, may believe that the forensic evidence associated with the remains would enable him or her to get a previous conviction quashed, either by a reference to the Court of Appeal or by some form of review. I should like to think that the Minister would agree to enable an appellant—and therefore, as the case is concluded, probably not an accused person for the purposes of the Bill—to go to a court, probably the Court of Appeal, for an order allowing the forensic material to be the subject of testing.

That is my suggestion. I do not expect the Minister to say yea or nay now. That would be an absurd proposition, as the point is complicated. However, I hope and expect that he will reflect on the matter and, if he sees substance in my argument, that he will move an amendment on another occasion and probably in another place.

Rev. Martin Smyth

I appreciate the opportunity to seek further clarification. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was concerned about protection for the accused. I am looking at the other side of the matter.

We have been told that the measure does not provide an amnesty. Can the Minister give us guidance? If the police and the Director of Public Prosecutions have information that a certain person may have been involved in the death of a body that has been discovered, and in the course of the inquest evidence is produced that ties the event to a particular time and place, can the prosecution use that evidence, or does the measure make it impossible for information that comes from an inquest, not from forensic testing by a prosecuting authority, to be used in prosecutions?

Mr. McFall

Substantive points have been made in the debate, and I shall try to answer them.

I understand the argument advanced by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I shall try to clarify the Government's intent in the Bill. We are dealing with relevant information provided to a commissioner. The information will be passed to the police or Garda, and an inquest will take place. We have given protection for information that comes forward. Only the coroner will be able to test how, where and when a person died and put that on the public record. I understand the right hon. and learned Gentleman's point and I shall reflect on it, but I see an illogicality in his proposition concerning the Bill's intent.

The hon. Member for Belfast, South (Rev. Martin Smyth) spoke about information forthcoming. With regard to criminal admissibility, once the information that the coroner has is on the public record as a result of an inquest, it can be used by anyone.

Rev. Martin Smyth

I thank the Minister for that information. If there was no criminal prosecution by the Crown, would the evidence be available for a civil case?

Mr. McFall

Yes. The information would be a matter of public record. I hope that that reassures the hon. Gentleman.

There have been some comments on the coroner's role, and it might be helpful if I described it. The coroner has powers derived from the Coroners (Northern Ireland) Act 1959. He has a duty to hold an inquest if a body found in his jurisdiction has died in suspicious circumstances. That information will have been provided by the relevant police authorities, who inform the coroner where the body is. The coroner directs the police to take possession of the body and orders a post-mortem.

Paragraphs (a) to (f) in clause 4(1) provide that no one else—for example, a state pathologist—goes into the detail of how, when and where a person died. It is for the coroner to do that. The state pathologist carries out the post-mortem and sends the report to the coroner, who arranges for a hearing. The coroner can summon anyone as a witness, other than a person alleged to have caused a death.

The coroner's duty is to make a finding concerning the identity of the body and how, when and where the person died. To that end, he calls the police, the pathologist and family members. The coroner's role vis-a-vis the family is obviously sensitive. Anyone who is likely to be able to give evidence that bears on who the person was and where and when he or she died can be called.

The proceedings are entirely a matter for the coroner. He has complete control. His court is a civil court. The ordinary rules of procedure apply regarding evidence given orally or by lay document. The post-mortem report will usually be read out in open court and questions put to the pathologist. After the hearing of all the evidence, the coroner will make a finding as to the identity of the body and when, where and how the person died. That will be made public.

The question was asked whether information made public after an inquest could be used in criminal proceedings. That can be done only by the defence, not by the prosecution.

Like clause 3, clause 4 is an essential element of the Bill to ensure that information is forthcoming to the commission. The construction of the clause is similar to the equivalent provision in the decommissioning legislation, as I mentioned. Subsection (2) provides that forensic testing for the purpose of the inquest is allowed. The inquest tests may determine the identity of the deceased, and how, when and where he or she died. Subsection (1) provides that testing for other purposes is not allowed. The other purposes are listed in paragraphs (a) to (f). Subsection (3) allows an item to be tested to determine whether it can be safely removed.

6.45 pm
Mr. Hogg

This will be my final intervention on the point, as I do not seem to have persuaded the Minister as much as I would like. We must focus a little more closely on what is suggested.

Our purpose in the Bill—much as I disagree with most of it—is to enable an accused person to defend himself or herself by relying on the forensic evidence. However, his or her ability to do that may depend on an ability to test the forensic evidence. That ability is restricted by clause 4, subject to the inquest procedure. The inquest procedure is contained in subsection (2).

The purpose of an inquest, at least in the present context, is to identify the deceased person and how, when and where he or she died. It is not the purpose of the inquest to identify the killer or to examine the weapon—in this case, the bullet—used. Under the subsection (2) powers, the coroner will not test, for example, the bullet to identify the gun from which it came, but that precise piece of information may be critical to a defendant—an accused—or to an appellant, and it will be denied to him or her because of the provisions of clause 4.

I am trying to persuade the Government that if it is right to give an accused person the ability to rely on the forensic material, it must be right to give to the accused person a right to apply to the court to have the material tested; otherwise it is nugatory. I am asking the Minister to understand that and to reflect on it.

Mr. McFall

I thank the right hon. and learned Gentleman. He has made the same point nine or 10 times. It usually takes me two or three times to understand. I have had seven extra opportunities, and I really do understand. I wonder whether the right hon. and learned Gentleman will understand the issue from our point of view. He wants to extend the forensic testing. He wants to make it open season not just for the defence, but for the prosecution.

The fact of the matter is as laid down in the Bill—there are defined limits to that information, for very good reasons. I come back to the point that relevant information provided to the commissioner is passed on for the simple purpose of locating a body. I well understand the point made by the right hon. and learned Gentleman, and I will reflect on it, but I think that he understands where I am coming from on that issue.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

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