§ 3.45 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, with the leave of the House, I will now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Scotland. The Statement is as follows:
"On 19th May 1976, I made a Statement in the House of Commons informing the House that, in the light of material, including fresh information, available to me, I was advising Her Majesty to exercise the Royal Prerogative of Mercy to grant a Free Pardon to Patrick Meehan who had been convicted in October 1969 of the murder of Mrs. Rachel Ross. Lord Robertson, in his summing-up to the jury on 1st December in the case of Ian Waddell, made remarks which were strongly critical both of my decision to advise Her Majesty to grant a Free Pardon to Patrick Meehan and of the use of the Royal Prerogative of Mercy in general.
"I have now studied his remarks in their context and I reject his criticisms. The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against apossible miscarriage of justice. The 605 Secretary of State should not hesitate to recommend the exercise of that power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts. This was the basis on which I acted in the Meehan case. In taking such a serious decision, I was not paying attention to clamour', as might be implied from Lord Robertson's remarks. I came to the conclusion, on the information available to me, not all of which was before the court in the Waddell trial, that it was no longer right that Patrick Meehan should be held in prison on conviction of the murder of Mrs. Ross. That remains my view.
"Lord Robertson stated that I did not exhaust the' obvious process of law ' by referring the case of Patrick Meehan to the Court of Criminal Appeal. A reference by me under Section 263(1)(a) of the Criminal Procedure (Scotland) Act 1975 is, of course, the only process by which the case could have been brought again to a court of law for judicial determination. As I explained on 19th May, I examined this possibility before deciding to advise the exercise of the Royal Prerogative. But, in terms of that provision, the court is limited in the extent to which it can consider a case afresh since it must hear the reference as though it were an ordinary appeal against conviction. Having regard to the nature of the consideration relevant to a decision on the case I reached the conclusion that my powers of reference back were inappropriate to it.
"The decision to recommend the exercise of the Royal Prerogative of Mercy in the case of Patrick Meehan was mine and mine alone. The decision to prosecute Ian Waddell, which depended upon different considerations, was not mine but a matter solely for my right honourable and learned friend the Lord Advocate.
"I am aware that, during the Waddell trial, questions were raised as to what was the precise effect in law upon a conviction of a grant of Free Pardon in the exercise of the Royal Prerogative of Mercy. These questions can only be authoritatively determined by a court of law. But it is generally accepted, 606 and this was the view stated by Lord Dilhorne in the other place on 19thMarch 1963, when he was Lord Chancellor, that it means that the conviction and all its consequences are wiped out and that persons who receive Free Pardons are to be regarded as being in the position of having been acquitted at trial.
"I have only this morning received a full copy of the judge's charge to the jury in the Waddell trial. I propose now to consider the issues arising from the two trials and whether, and in what form, further inquiry might throw new light on any of these issues."
§ 3.50 p.m.
Lord CAMPBELL of CROY
My Lords, we are grateful to the noble Lord, Lord Kirkhill, for repeating the Statement made in another place. I withheld the Question which was down in my name earlier this afternoon, because I was informed this morning that this Statement was to be made.
The Meehan and Waddell cases have caused considerable concern, especially about the relationship between the processes of law and administrative actions by the Government; and I should like to ask the noble Lord the Minister two or three questions. First, as regards the pardon in the Meehan case, the Statement seeks to explain why the case was not referred first to the Court of Appeal, although fresh evidence was apparently available. Did the Government consider using the special procedure available in Scotland of an inquiry by a Scottish judge, as in the Colin Temple case about four years ago? As a result of the judge's inquiry in that case, the Secretary of State of' the day decided to leave the situation as it was.
That case is not fresh in memories because of its sequel. About three months after Temple had served his prison sentence, he committed a similar offence—an assault on a woman—and pleaded guilty. Everyone who had been campaigning to free him then dropped the case immediately. Returning to the cases of Meehan and Waddell, by indicting a second man for murder, for which another had already been found guilty in court, was not the Lord Advocate assuming a legal effect of the pardon? Granted the view stated by a Lord Chancellor in 1963 which was referred to in the Statement, has it ever 607 been decided in Scots law what the legal effect of a pardon is, as distinct from the position in England and Wales? Will there not now be a temptation to some criminals to make false confessions, with their eyes on the money made available by the media for their stories, confident that there is evidence to acquit them if they are actually brought to trial? Is it not all the more important for the Government to be very careful about intervening administratively in matters which have been decided by the due process of law?
§ Lord WIGODER
My Lords, the Statement repeated by the noble Lord, Lord Kirkhill, is a deeply disturbing one because it reveals an open conflict between the Executive and a member of the Judiciary as to the operation of the Royal Prerogative of mercy. In this unhappy situation, I doubt if it helps to rush precipitately into any discussion of the merits of these two cases. I do not believe that that can helpfully be done unless one has had access—and I doubt whether any of your Lordships have had such access—to the full transcripts of the Meehan and the Waddell cases and to all the further information that was no doubt available to the Secretary of State, but which might not have been admissible in a court of law in either of the trials and might also not have been admissible at the hearing of Meehan's appeal, had the Secretary of State referred it to the Court of Criminal Appeal, even though it was evidence which might have been of considerable probitive value.
I do not see how this situation can be left as it now is, and I would invite the noble Lord, Lord Kirkhill, to urge upon his right honourable friend that it is clearly necessary for there now to be a full inquiry into the whole of these two trials and into the whole of the circumstances in which the Royal Prerogative came to be recommended. I would suggest that that is necessary in fairness to the Secretary of State himself, in fairness to the trial judge and in fairness both to Meehan and Waddell.
§ 3.54 p.m.
Lord KIRK HILL
My Lords, the noble Lord, Lord Campbell of Croy, posed three questions to me. The first asked why, under Section 263(1)(b), there had not 608 been a consequent action. I am advised that that would not have restored the case to the judicial field. The ultimate responsibility would remain with my honourable friend, involving still a decision by him on a Prerogative recommendation. At the same time, the Thompson Committee in their first report described the use of the procedure in the Temple case as:a most unsatisfactory mixture of judicial and administrative functions.Regarding the noble Lord's second question, I can accept, as does my right honourable friend, that one person convicted and pardoned and another found not guilty is an unsatisfactory outcome of the robbery and murder at Ayr. But such an outcome is not rare so far as crime is concerned and, as is made clear in the Statement, the decisions were taken quite independently, on different considerations, by the Lord Advocate and by my right honourable friend the Secretary of State. Regarding the third question put by the noble Lord, Lord Campbell of Croy, I would simply refer him to the reply given by my noble friend Lord Harris to an earlier Question posed by the noble Lord, Lord Airedale. I do not think I can add to that.
I have noted the remarks made by the noble Lord, Lord Wigoder. Perhaps I might refer him to the last part of the Statement, when I indicated that the Secretary of State is giving further consideration to what form, manner and mode of inquiry might be considered necessary.
§ Lord BOOTHBY
My Lords, as the only Member of your Lordships' House who has ever played whist in prison with Oscar Slater, which I did—I thought he was very cross and I asked the governor why he was so cross; and the governor said he had good reason to be—does the noble Lord not think it would be advisable to follow precisely the procedure that was adopted in his case, when he was subsequently acquitted by the High Court in Edinburgh?
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I hope I am not rushing in where angels fear to tread, but may I ask the noble Lord two questions. 609 Is it not right that one of the factors which gives one disquiet about the correctness of Meehan's conviction was an alleged confession to a solicitor by a person since deceased? Does that not make it rather difficult for a court of appeal, governed by the kind of limitations which restrict the actions of a court of appeal, to look into that particular question? Was not the Secretary of State in a genuine difficulty by reason of that factor?
Secondly, one is always very much disturbed by open expressions of disagreement between a senior member of the Judiciary and a senior member of the Executive. Are the Government satisfied that the channels of communication between the Executive and the higher Judiciary in Scotland are altogether satisfactory? Was it absolutely necessary for the judge, in his charge to the jury, to make these animadversions on the Secretary of State? Does not one rather feel that the Secretary of State ought to have better communications with the Judiciary, and that the Judiciary should have better communications with the Secretary of State, before this sort of thing happens? Would the noble Lord bear in mind that these expressions of disagreement in public do not do either the Judiciary or the Executive much good?
§ Lord KIRKHILL
My Lords, in reply to the noble and learned Lord's first two-part question, the answer is, Yes, and again Yes. So far as his second question is concerned, he has expressed an opinion, it is placed on the record and I do not think that I could usefully comment.
§ Lord HALE
My Lords, is this not a case where the Scottish writ of incrimination was used by way of defence, which the defence are entitled to? Did that not inevitably mean that the judge was placed in a quite intolerable position, because he had to sum up between a pardoned man and an unconvicted man? That is an almost impossible task. Did not the Lord Advocate realise that the use of the writ of incrimination was inevitable in the circumstances, and any advocate would be failing in his duty if he had not used it? With regard to the observations referred to by the noble and learned Lord, Lord Hailsham, surely even a senior Scottish 610 judge knows that the powers and prerogatives of the Crown have passed to the Executive. If he wishes the Lord Advocate to refer to an example, he will find on 7th July 1689 the procedure by which your Lordships' House passed a free pardon to Titus Oates, and a day or two later committed him to the Marshalsea for contempt of Parliament.
§ Lord KIRKHILL
My Lords, I can only say to my noble friend that I speak in this House for my right honourable friend the Secretary of State for Scotland. I am unable to comment on the observations which he has made about the Lord Advocate.
§ Lord HARMAR-NICHOLLS
My Lords, may I ask the noble Lord to keep in mind the possible dangers of a by-product in this? If we are going to get to the position where the objectivity of a judge is to be questioned by a Secretary of State, it is creating a danger that may grow into proportions which we would not wish to happen. I may have misheard my noble and learned friend Lord Hailsham, but I should not like to feel that in arriving at what is hoped to be a correct verdict there was any easy communication between the Judiciary and the Executive. The strength of the system is that they are completely separate, and arrive at their decisions without conniving with one other. I should like to feel that in this instance both are right, and it could well be that the Secretary of State, in recommending the prerogative, was right on the extra evidence he had. It may be that he was precipitate in not allowing an impartial Court of Appeal to look at it, too. But it was also right for the judge to sum up and give views which he genuinely thought were relevant to the case, in the light of information which had been given to him. The danger is if, in the way that it is handled from now on, it looks as if there is conflict between the Executive and the Judiciary. That is a by-product which I hope they will try to avoid.
§ Lord KIRKHILL
My Lords, I can only re-emphasise that the decision to recommend the Royal Prerogative is a decision which is personal to the Secretary of State.
§ Lord HAILSHAM of SAINT MA RYLEBONE
My Lords, but is it not the case that in England—and the noble Lord 611 speaks for the Government, and not simply for the Secretary of State, in making these statements—if a pardon of this kind is contemplated, the Secretary of State for Home Affairs does, in fact, normally communicate with the trial judge, among others, as to his proposed intention before he does it? Is it not also true that the trial judge, or other members of the Judiciary, have, properly and rightly, channels of communication if they wish to reproach the members of the Executive, without allowing themselves to give expression to strong views of condemnation in public without previous warning, if such was the case here? Furthermore, is it not the case that, once you have a situation in which one of two persons must be guilty of a detestable murder, but neither can be proved guilty satisfactorily, both must be allowed to go free?
§ Lord KIRKHILL
My Lords, in response to the first point made by the noble and learned Lord, Lord Hailsham, I can advise your Lordships' House that the Meehan trial judge is dead. I think I should also say to your Lordships that the trial judge in the Waddell case did not give the Secretary of State for Scotland notice of his intention to criticise the Executive.