§ 6.26 p.m.
§ Lord DRUMALBYN rose to move That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, Q.C., in the light of the Third Report of the Committee on Criminal Appeals in Scotland (Cmnd. 7005), the Report of the Bryden Working Group on Identification, and the Report of the British Section of the International Commission of Jurists ("Justice"); and to take early appropriate action either by advising Her Majesty to exercise the Royal Prerogative in favour of Mr. Anderson or by instituting an independent inquiry as to whether substantial grounds exist for believing that a miscarriage of justice may have occurred. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. It is a long Motion, and I am sorry to have to tell your Lordships that I am going to inflict on your Lordships a fairly long speech. I only hope that I can make it reasonably interesting and that I shall carry conviction, if that is the right word to use.
§ This is the third time this case has come before Parliament. It has already been debated both in the House of Commons and in this House, and there have been a number of Questions asked in the House of Commons about it. But I hope to show that there are good reasons for bringing it before your Lordships again this afternoon. It is a most unusual case. The trial of Mr. Anderson took place over five years ago under summary procedure without a jury, for in Scotland the accused has no right in summary trials to require a jury. Under summary procedure no official written record of the proceedings is made, but in this case a certified written record was made, unofficially but with court consent, by the senior shorthand writer of a firm which acts for the court officially in High Court trials. I believe that record was ignored both by the sheriff and by the Crown until after the debates in Parliament.
The justification for bringing this case before your Lordships again is to he found on page 4 of the Justice Report:
The summary discloses strong possibility that an innocent man has been convicted without adequate appellate means of review or redress
and with the consequence as a practical matter of dismissal from his career as a senior civil servant and total destruction of his reputation".
§ A Petition was submitted, along with the written record, to the Secretary of State. It was signed by well over 1,000 people, including 80 Members of both Houses of Parliament, ministers of religion, 100 members of the legal profession, doctors and many other people. There has also been considerable interest in the Press; there have been letters to the Press and there have been editorials in the Press, particularly in Scotland, of course, and widespread comment.
§ What caused the concern? Here was a man of proven ability and reliability, with a distinguished War service and an exemplary family life—a man who had just been appointed to a position of responsibility as Chief Reporter in Public Inquiries. That man was convicted of an offence which almost certainly would, and in fact did, mean the loss of everything except his devoted family and his closest friends who knew him best. He was convicted on the judgment of one man without having any right of appeal on the facts as found by that one man; for in Scotland the law still allows a right of appeal from summary conviction on points of law only. All the Appeal Court can do as regards the facts is to look at the Stated Case submitted to it by the sheriff and say whether, on the facts as stated, the sheriff was entitled to convict.
§ The defence has a right to see the draft Stated Case and to propose adjustments to it reflecting evidence which the defence believes the sheriff has not taken into account or not taken fully into account. But the sheriff has, in theory at least, complete discretion whether to incorporate the proposed adjustments, or any of them, in his Stated Case or to reject them. Before deciding, the sheriff may allow the defence a hearing, but again that is discretionary.
§ In this case the procurator fiscal opposed all the adjustments except one of a minor technical nature. The defence referred the proposed adjustments to the Crown Office, but the fiscal confirmed total opposition, presumably on the advice of the Crown. The sheriff deferred to this Crown pressure and exercised his discretion accordingly.914
Pages 12 and 13 of the Justice Report summarise the adjustments that were thus rejected. The Justice Committee, whose excellent report many of your Lordships will have read, criticised the Crown very severely for what it called, their "blanket opposition"
was tantamount to suppression of facts from the Appeal Court".
I should like to refer again to the Report of the Justice Committee. It said:
In the absence of reasonable explanation, the inference is inescapable that the Crown's blanket opposition was not based on a selective and proper examination of the merits of each adjustment, but was a policy decision to oppose them in toto whatsoever their contents and irrespective of their merits".
That being so, the Minister of State owes the House and the public an explanation for this blanket opposition.
§ I now come to the three reports to which I refer in my Motion. First, the Committee on Criminal Appeals, chaired by Lord Thomson, presented its Third Report last December. That report deals with summary jurisdiction appeals. Should there be a right in Scotland to a re-trial as in England and Wales?—as the noble and learned Lord, Lord Hailsham of Saint Marylebone, at an earlier stage thought was essential for the protection of the citizen. The Committee thought not. Scottish criminal proceedure differs considerably from that in England because there is no middle tier to hear the appeals. It considered a right to re-trial unnecessary in Scotland. But did it consider satisfactory the present procedure in summary jurisdiction? Emphatically, no!
The Committee gives its recommendations in Paragraphs 8.18, 8.19 and 8.21 of its report in the following terms:
We consider therefore that a hearing on adjustments, at which both parties should have a right to attend, should be mandatory, unless both parties intimate formally that they have no adjustments to propose and the judge does not himself wish to make any alterations to his draft".
It then goes on:
Where, however, the adjustments incorporate new findings in fact or other matters not covered in the draft and the judge proposes to reject them, we consider that he should state not only the fact of his rejection but his reasons therefor. Similarly, if a particular finding in fact is challenged as being unsupported by the evidence, the judge should he obliged to state the evidence upon which the finding is based. We recommend accordingly".
At paragraph 8.19 the report says:
We recommend that any proposed adjustments which are not withdrawn by a party but are rejected by the judge, should be included in the minute of proceedings",
and it then proposes a possible style for that. At paragraph 8.21 it says:
We consider that the present power of the High Court under Section 452(1) of the 1975 Act to remit a case back to the inferior court for amendment should be retained".
The second report is that of the Bryden Working Party. It was set up jointly by the Secretary of State and the Lord Advocate to consider how far the findings of the Devlin Committee on Identification in England and Wales were applicable in Scotland. The Working Party agrees with Devlin that eye-witness identification is fallable, but recommends that for Scotland it is preferable to improve identification procedure rather than to strengthen requirements of evidence. The Working Party recommends in Paragraph 4.41:
… there will continue to be occasions where informal identifications will be necessary, and we are concerned that the evidence resulting from such informal identifications should be as valuable and as fair as possible. We have agreed that the Rules should state explicitly that witnesses should not be together at informal identification".
§ In the Anderson case the witnesses were two young girls and they were placed together in the back of a police car. The inference is that the informal identification procedure in the Anderson case was neither valuable nor fair. Yet, the procurator fiscal told the sheriff in his final address that the case turned on the identification of the girls. I shall come back to that matter for I must now come to the trial itself as recorded in the transcript of evidence, and I shall not go beyond the evidence there recorded.
§ The third report mentioned in the Motion is that of the Justice Committee, which is the United Kingdom Branch of the International Commission of Jurists. The report was prepared by a working party of five experienced Scottish lawyers and was approved by the full Committee nemine dissentiente. The group included two distinguished former sheriffs, one now a professor of law, and three solicitors. The Committee is too well known and too highly respected to need any introduction from me in this debate. It is sufficient to say three things. First, the noble Lord, Lord Foot, who is to speak 916 in this debate, is an officer of the Justice Committee. Secondly, the Justice Committee very rarely inquires in depth into individual cases. Thirdly, I understand that it was moved to do so in the Anderson case because of the existence of the transcript of evidence, and it based its conclusions largely upon it.
§ Before I deal with the trial itself, let me say that nothing in my speech is intended in any way to impugn the integrity of anybody. I am sure that everyone concerned acted as they believed was right in the circumstances. But anybody can make mistakes, and mistakes have certainly been made in this case on both sides.
Your Lordships may recall that on t he night of Monday, 18th December, two girls, both 14 years of age, were walking along the Prestwick/Ayr road, in the direction of Ayr, when a man got out of a car which was parked practically under a street light in a reasonably well lit road. He came up from behind them and said, "Excuse me". He then asked the way to Troon. He said that he was from Edinburgh and was staying at an hotel in Troon. According to the girls, the man was polite, well-spoken and sober. He invited them to take part in a "rag"—a very clean rag, he said. He wanted them to jump on him, kick him and walk on him. He said that a woman at Edinburgh University had bet that she could "lay" him at judo, and he wanted training for this encounter. One girl said "What! Here?" He offered to take them somewhere quieter and invited them into his car to talk it over. The girls said that they would rather stand on the pavement and talk to him there. He then offered them £1 each to take part in the "rag". Each girl, in turn, said "No", one adding that she was only 14 years of age. At that the man said:
That's all right then; it was really older girls I wanted".
The girls then turned and walked off laughing. One of the girls later told her parents that she thought he was a hit of a crank.
§ There is no evidence that the girls were at all alarmed. Yet Mr. Anderson was charged with conducting himself in a disorderly manner and alarming the girls. On the evidence of a boy who the girls talked to immediately afterwards, they were "not unduly excited". Certainly 917 their respective parents thought that they were not excited enough, and they soon put that right by the time the police arrived.
In his final address to the court the procurator fiscal said:
This is basically a very simple case of breach of the peace, and is utterly dependent on the evidence of the two girls … If your Lordship takes the girls as credible witnesses, in my submission this charge has been made out".
The credibility of the witnesses is not in question. In his Stated Case to the High Court the sheriff said that he accepted the evidence of the girls "in its entirety". However, when compared with the trans-script of evidence his Stated Case shows otherwise. In particular, he did not accept their evidence on what proved to be the most vital point of all; namely, the alleged identification of the car; nor did he accept the girls' own description of the man.
Two nights later the girls were taken by a police sergeant and a policewoman to look at cars. After visiting two other hotels, they went to the car park at the Tower Hotel where Mr. Anderson was staying. They were taken to the car park by the policewoman only, while the police sergeant went into the hotel. There they saw an estate car which, according to the policewoman's evidence, each girl said was "like" the car that they had seen at the place of the incident —"like" the car they had seen. One of the girls who was more interested than the other in cars, and who had thought that the car at the incident was a saloon car, said:
Actually, it would have been more like it if it hadn't been an estate car".
But she added:
I never really got a good look at the back of it",
meaning the car at the incident. But she did have a good look at the front of it, and in particular at the number plate, while she was talking to the man. As soon as she returned home—within half an hour or so—she wrote down the number. It was BCS or BSC, then three figures one of which was a five, another a four and the third she could not remember; then there was the letter L. The number of Anderson's car was BSC 555L. She thought that the car at the incident was
a blue Chrysler saloon, whereas the car in the car park was a Triumph estate car, which the same girl described as dark green.
The girl testified that she was able to see the car "quite distinctly". There was a street lamp just in front of the car. The sheriff, however, wrote in his Stated Case that the girl had:
no clear view of the number".
Justice described this error as "inexcusable and prejudicial". Conclusion 7 in the Justice Report says:
It is conclusively established from the transcript that the sheriff did misdirect himself in holding that Jill had no clear view of the car number. This misdirection was on a critically relevant point, as but for it there would have been no explanation to account for the witness having remembered a number different from Mr. Anderson's 555".
One cannot make a mistake about three fives any more than about three nines—999. But the girl seems to have remembered that there were three different figures.
§ After leaving the car park, the policewoman and the girls rejoined the police sergeant. Questioned by the police sergeant, the girls seem to have given him the impression that they did think the car in the car park was the same car as they had seen at the incident, not just one very like it. This was not what they said at the car park, and it was not what they said in court. No further search for a car even more like the car at the incident was made. It stopped at that.
§ This muddle about the identification of the car had a serious effect on the subsequent purported identification of the man. The next day but one the scene was set for identification. A car, with two policemen in the front and the two girls on the back seat, was parked some 40 yards or more from the Prestwick Police Office, at which arrangements had already been made for Mr. Anderson to call and hand in a photograph of himself on his way to the inquiry over which he was presiding in Kilmarnock.
Before long the girls saw the car which they had seen in the car park draw up at the police station. They saw a man get out and go into the police station. A minute or so later he came out and went towards the car. The girls looked at him and then looked at each other. That alone vitiates
the identification. Justice, on page 9 of the report, finds:
Influence of one witness on the other did take place".
Defence counsel asked Jill, one of the girls, if she took anything from the fact that her friend turned and looked at her. Jill answered:
Well, I thought it meant we both had the same sort of idea that that was the man".
Counsel also asked:
Were you expecting a car to come to the police station with the man you had seen before in it?
The witness replied:
We hadn't been told it would be. But I thought myself that is how he would come".
The sheriff wrote in his Stated Case that the police had acted "very ably and discreetly". The Justice Committee, on the other hand, found that the police had acted:
in breach of the Official Instruction Book for the Scottish Police".
The report goes on:
There was no justification for the breach—no factor or emergency or urgency".
I have already referred to the recommendation of the Bryden Working Party on Identification. Unlike the Devlin Committee, the Bryden Working Party was not required in its remit to inquire into the merits of particular convictions based on identification. None the less, it plainly had in mind the Anderson case, among others—including that of Oscar Slater—when making its recommendations. Indeed, Sheriff Bryden was quoted in the Press as saying, presumably at a Press conference:
We would consider that the Police were wrong in taking the two principal witnesses along to identify Anderson together in a police car. We have indicated that witnesses should he kept apart as far as possible".
He added very properly:
That is not to say that Mr. Anderson did not do what he is alleged to have done".
Very properly for that was not within the remit of his working party. What it quite plainly means is that the purported identification is of no use at all to prove that he did do it. Yet the procurator fiscal told the sheriff that the case turned on the identification by the girls.
§ Add to this the fact that the description given by each of the girls of the man at the incident differed markedly from the 920 physical features of Mr. Anderson in height, build, shape of face, eyebrows, shape of eyes and in colour of hair. The two girls each separately gave much the same description. The man at the incident wore a greatcoat and a cloth cap. Mrs. Anderson testified that her husband had not taken either a greatcoat or cloth cap with him, and the prosecution did not challenge her evidence.
On identification let me read a brief extract from page 15 of the transcript of evidence. Bear in mind, my Lords, that the purported identification at Prestwick Police Station was made at 40 yards range or more.
Procurator fiscal: Although the man was dressed differently from what he had been on Monday night, had you any difficulty in recognishim?
That was the first girl to give evidence.
- Procurator Fiscal: Do you see him in court this morning?
- Witness: Yes.
- Procurator Fiscal: Where is he?
- Witness: There behind you.
- Procurator Fiscal: There are a lot of people behind me?
- Witness: The one at the end.
- Procurator Fiscal: The one who is writing?
- Shorthand writer's note:—the witness pointed to me".
The point is that the features and build of the shorthand writer corresponded closely with the description given by the girls both on the night of the incident and the following morning, and were quite different from those of M r. Anderson. I should add that the sheriff duly recorded this incident in his stated case. No adjustment needed there. That concludes my summary of the trial. I should only add what Justice said in paragraph 6 of their conclusions:
The cumulative weight of the positive indications coupled with the unreliability factors is so great that no judge properly directing himself, weighing these against the identification, could have failed to hold that reasonable doubt existed".
That, I would remind you, was a working group which included two ex-sheriffs.
§ There is one further matter I must mention before I conclude, if only because, if I did not, the noble Lord would be tempted to say that I had passed over it deliberately. This matter falls outside the 921 evidence. He may attach more importance to it than I do. After the policeman had called on Mr. Anderson and told him of the incident and that his car had been identified as having been involved in it—which proved to be false, though no doubt the policeman believed it to be true—he wrote to the police denying any involvement.
§ Later, following a visit to the Crown Agent, he wrote a letter to him admitting that he had taken his car out and met two girls. This was something that the police had mentioned to him. He was not aware at the time that any offensive suggestion had been made to the girls, and he was relying on the police sergeant's remarks to him that it was a very minor matter. He also made some kind of admission to the Permanent Under-Secretary of State. These admissions he withdrew when he learned that the charge was of a more serious character. The Justice Report deals convincingly, in my view, with this unwise action in Appendix 3. The purported letter of admission was not produced in evidence by the Crown, so it has never been examined in court.
Let me come to the prerogative side. The Motion calls on the Secretary of State either to exercise the prerogative of mercy or to set up an inquiry. A letter written on behalf of the Secretary of State on 6th September 1976, explaining why the Secretary of State in the circumstances of this case would be taking no action on the petition signed by over 1,000 people, said this about the exercise of the prerogative:
that is, the Secretary of State—
only function is to consider whether there are extraordinary circumstances in the case before him in recommending to Her Majesty the exercise of the prerogative for a free pardon or remission".
§ Is it not an extraordinary circumstance that a sheriff should use his discretion to reject 10 pages of adjustments to his stated case, or even to discuss them with senior counsel, and so to deprive the Appeal Court of an opportunity to take into account the facts and considerations omitted in the stated case? That is surely a "factor of substance", of such considerable substance that Lord Thomson's Committee has recommended that this 922 should never again be allowed. Surely the glaring gap in the present law ought not to be ignored in this case—a gap exploited by the Crown to procure what Justice calls this act of maladministration in discretion; that is to say, the rejection of the adjustments. Justice points out that the defects in the law do not excuse the conduct of the Crown. They aggravate it. The gap may be said to have created a duty on the Crown to be more careful to be fair.
Surely, in these circumstances, the Minister of State cannot rest on the statement that he made in the debate on 21st January 1976, at column 555 of Hansard, that
… there is no doubt that Mr. Anderson was duly convicted in accordance with the criminal law of Scotland".
He cannot justly maintain that a power of discretion in a lower court is utterly unchallengeable however it is used or misused. Discretion must itself be discreetly used. Even if he were to do so, he must also take into account the definition of the purpose and exercise of the Royal Prerogative which the Secretary of State gave in the House of Commons on the 8th December 1976 at column 455 in connection with the Meehan case when he said:
The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against a possible miscarriage of justice".
Note the word, "possible".
The 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".
Note that this definition does not contain the limitation which the noble Lord, Lord Kirkhill, referred to in the last debate that there must be new factors which were not before the sheriff. That is absent from that definition.
§ Mr. Anderson had only one possible remedy. That was to have the case remitted back by the Appeal Court. That remedy was denied to him by the Crown which, for reasons not disclosed, opposed defence counsel's motion for the case to be referred back. Now he has no remedy in the courts at all. He can rely only on the Secretary of State to exercise the Royal Prerogative to protect the citizen against a possible miscarriage 923 of justice. If the Secretary of State accepts as, the Justice committee so unequivocally have accepted in their final conclusion, that there are substantial grounds for believing that a miscarriage of justice may have occurred, surely the Secretary of State should exercise the prerogative of mercy in this case and rescind the conviction which has ruined the career and blighted the life of Mr. Anderson. If he wants further elucidation of any matters at issue, he can set up a public inquiry. To do so, we have been told in the course of debates on the Scotland Bill, is part of the prerogative. Then he can decide, in the light of the inquiry's findings, whether or not to exercise the Royal Prerogative. My Lords, I beg to move.
§ Moved, That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, Q.C., in the light of the Third Report of the Committee on Criminal Appeals in Scotland (Cmnd. 7005), the Report of the Bryden Working Group on Identification, and the Report of the British Section of the International Commission of Jurists ("Justice"); and to take early appropriate action either by advising Her Majesty to exercise the Royal Prerogative in favour of Mr. Anderson or by instituting an independent inquiry as to whether substantial grounds exist for bellying that a miscarriage of justice may have occurred.—(Lord Drumalbyn.)
§ 7 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, as we know, this House discussed the case of Mr. David Anderson on 21st January 1976, following a debate in another place on 11th April 1974. I told the House then that, as in all prerogative cases, the Secretary of State for Scotland was always willing to consider any new information that might become available about the case. I assured the House that he would carefully consider the petition then circulating and certain matters raised in that debate. But I also explained why, on the information available at that time to him, the then Secretary of State took the view, like the previous Secretary of State who had considered the matter in 1973, that no action on his part was justified. Perhaps it would be of assistance to the House if I referred to subsequent events.
924 The Petition I have mentioned was sent to the Prime Minister, and to the Secretary of State, some time afterwards, in 1976. I should perhaps mention, because prerogative cases have always received the very personal attention of the Secretary of State, that in the meantime there had been a change of Secretary of State, so that reponsibility for consideration of the Petition fell to a different person. Nevertheless, after a full consideration of the case, the present Secretary of State came to the conclusion that there were no grounds, either in the case itself or revealed by the Petition, for departing from his predecessor's decision.
The case was then the subject of a report prepared for the organisation Justice by a group of Scots lawyers, and referred to by the noble Lord, Lord Drumalbyn. That report was submitted to my right honourable friend the Secretary of State for Scotland in March this year. It was suggested that the report contained additional information about Mr. Anderson's case, in the light of which my right honourable friend should consider the report. He also received further representations from Mr. Anderson himself. The Secretary of State carefully examined the report and Mr. Anderson's representations, but came to the conclusion that he had no grounds for departing from his previous decision. If I may say so, his reasons for that conclusion were entirely consonant with the assurances I gave the House in 1976. A careful examination of the report, and indeed the Petition of 1976, shows that, in the words of the letter which my right honourable friend sent on 24th May 1978 to the solicitors who submitted the report, theydo not provide any further information relevant to the offence—that is, to the events which resulted in Mr. Anderson being tried and found guilty.
I have no desire to repeat my own speeches, but, particularly on account of the suggestions that there have been discrepancies in the criteria used by the Secretary of State in different prerogative cases, I feel that I must repeat the very full explanation of the Secretary of State's constitutional position in cases of this kind which I gave to your Lordships in the 1976 debate. I said:His"—925 that is, the Secretary of State's—prime function is to uphold the rule of law. What has been done by a court of law must be presumed to be duly done and its orders upheld. unless there is reason to doubt its correctness. His second function, and one that the Secretary of State, like his predecessors"—and, if I may interject, his successor—finds one of his heaviest responsibilities, is to consider whether there are any reasons to doubt the correctness of a verdict. If information comes to his attention that the court's verdict appears to have been in error—that a person who was innocent may have been convicted—then it is his duty to investigate the case and weigh up the fresh issues carefully against the court's decision and, if there are sufficient grounds, to provide a remedy. For this purpose, he has been given the extraordinary power to make recommendations to Her Majesty the Queen for the exercise of the Royal Prerogative of Mercy.I have referred to it as an extraordinary power because such it is. The Secretary of State is not empowered to re-try a case and decide on the merits of a conviction on the evidence at the trial. Leaving aside his lack of powers for the moment, even a Court of Appeal armed with a transcript is in no happy position to do that … for it has not heard the witnesses under oath and examination and observed their demeanour. What is required, if he is to exercise his powers in a case of this kind, is some additional information —sonie further factor—not before the court, which points towards a miscarriage of justice. It cannot be some fanciful or unconfirmed doubt or possible alternative explantion. It must be a factor of substance."—[Official Report, 21/1/76; cols. 552–3.)I must remind the House that Mr. Anderson was convicted by a court of law and, whatever may be the limitations of the appeal system—a matter to which I will proceed—any impropriety of law or procedure would have been dealt with by the Appeal Court. Apart from the evidence before the court when it convicted, the only additional items of information of substance regarding the case against Mr. Anderson are the two separate admissions he made about his involvement in an incident with two girls which are in conflict with his alibi defence, and his subsequent explanations of why these admissions were made.
I have repeated a passage from my speech in the 1976 debate at some length, because the Justice report makes much of an alleged discrepancy between the criteria adopted by my right honourable friend in the case of Mr. Anderson on the one hand and Mr. Patrick Meehan on the other. In Mr. Anderson's case, the letter conveying my right honourable friend's 926 decision on the petition described his responsibility as follows, and Lord Drumalbyn referred to this:His only function is to consider whether there are extraordinary circumstances in the case before him which would justify him in recommending to Her Majesty the exercise of the Royal Prerogative for a free pardon or remission".The Justice Report contrasts this with what my right honourable friend said in another place on 8th December 1976 following Lord Robertson's criticism of the granting of a free pardon to Mr. Patrick Meehan:The Secretary of State should not hesitate to recommend the exercise of the 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".Thus, Lord Robertson. I am sure your Lordships will see, from the full statement I have made, that there is no conflict between those two statements, each made in its own different context and in particular between the phrase "extraordinary circumstances" used in relation to the Anderson case and the phrase "substantial grounds for believing" used in the Meehan case There is no question of a stricter standard being applied in one case than in the other. Quite simply, the phrase "extraordinary circumstances" denotes the fact that prerogative intervention in the decisions of a court of law is an extraordinary and, rightly, a rare occurrence which requires very special features to be established in the case. But it is a power and a responsibility in the Secretary of State and it is right that he should exercise it by making a recommendation to Her Majesty when he hassubstantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts".The case against Mr. Anderson turned largely on evidence of visual identification and it has been argued his appeal, heard under the Scottish law on summary appeals, was an inadequate review of the case against him. It is natural that those who are concerned about the case should direct attention to these aspects of the criminal process. Indeed, the possibility that it might disclose the need for legal reform on those issues is one of the main arguments given by the Justice Committee for their suggestion for some further form of inquiry. May I say three things about what the Justice Report says on these issues? 927 First, may I reply to certain comments on my speech in the 1976 debate. It was suggested that I had said to your Lordships that everything was satisfactory in Scottish criminal procedure and that I had subsequently been contradicted by the Lord Advocate. In fact, while I suggested general confidence in the summary criminal courts and their procedures—a suggestion borne out by Lord Thomson's Committee in its Second Report—I specifically made reservations about the right of appeal from those courts. I said "The criticism might well be justified", and referred to the further work of the Thomson Committee. I see no conflict with the Lord Advocate's subsequent remarks. Similarly, what I said in the 1976 debate, when I am alleged to have condoned a breach of identification procedures by the police, is contrasted with the remarks of my right honourable friend, the former Secretary of State, in the debate in another place in April 1974. I should like to make it clear, however, that I did not say that the police were entitled to make the specific arrangements they did for the identification of Mr. Anderson. I accept that these arrangements are not those provided for in the recommended rules for police procedure, which, I must emphasise, have no formal binding status. What I said was that, Mr. Anderson having refused an identification parade, the police were entitled to make other arrangements than an identification parade for possible identification.
Secondly, on the issues of identification evidence and appeal I must point out that both those issues have been the subject of recent extensive inquiries by strong Departmental Committees—the Bryden Working Group and the Thomson Committee—and cases such as Mr. Anderson's have loomed large in their inquiries. These bodies have recently reported. Whether their recommendations are right or wrong I do not know—I am not an expert in these fields. But we can be confident that such extensive inquiries will have brought out all the considerations relevant to those issues. In accordance with normal practice, the Secretary of State and the Lord Advocate, on the publication of these reports, asked for advice and opinion on them and approached the main Scottish legal bodies for comment. If Justice or any of your Lordships have any views to express, I 928 am confident that the Secretary of State and Lord Advocate would very much welcome them to assist them in reaching conclusions on the Committee's recommendations.
For my third point I must revert to what I have already said about the constitutional position. Mr. Anderson was convicted by a court of law after the hearing of the evidence in the case, and it was a conviction according to law, as the Appeal Court held. That is the machinery under our constitution for the resolution of disputed facts in criminal cases, and that would be the end of it, but for the Secretary of State's long-stop powers. I am sure it is right that matters of this kind should, so far as possible, be the subject of judicial rather than executive determination.
I appreciate that there are some who believe that Mr. Anderson was not party to the incident with the two girls, and that others are concerned that there may have been a miscarriage of justice. The Secretary of State has, on two occasions, personally examined this case in the light of representations made to him. He has read the unofficial transcript of the Ayr trial, from which the Justice report draws much material in dealing at length with the acquisition and sufficiency of identification evidence. He has also carefully read the Justice Report itself. He concluded, however, as I have said, that that report did not bring out any fresh factor relating to the charge against Mr. Anderson. I think the House will accept that suggestions of doubt about the evidence at the trial or the inadequacy of the appeal procedure, while matters to be taken into account, are matters which arise in many criminal cases, and do not as such constitute grounds for Executive interference in the decisions of courts of law.
I must repeat that the Secretary of State's mind is never closed in a prerogative case. If there were reason to believe that some further inquiry or investigation would reveal facts or factors bearing on the events on the night of 18th December 1972 which would assist him in his decision, then the Secretary of State would willingly make arrangements for inquiry to be made. But he has identified no such line of inquiry, nor is one revealed by the analysis in the Justice Report.
929 I regret therefore that I can give the noble Lord, Lord Drumalbyn, little satisfaction—perhaps only that, insofar as the case may raise anxieties about the possibility of miscarriages of justice under our law on visual identification and summary appeal, these are matters which are already under examination and on which reports have been published. My right honorable friends would welcome any comments any of your Lordships might wish to make on these reports.
§ 7.16 p.m.
§ Lord FOOT
My Lords, may I begin by expressing the thanks of the House—I am sure it will be the thanks of the House—to the noble Lord, Lord Drumalbyn, for having raised this matter. That expression of gratitude to him is no formality. It was necessary, if this was to be an intelligible and intelligent debate, that somebody should start off by putting before the House the basic facts of the Anderson case. That was no easy task. The way in which the noble Lord was able to bring the essential facts of this case within the ambit of only 30 minutes is something for which we should all be indebted. Some of the things that I had planned to say arc now unnecessary. However, I shall seek in what I have to say to underline and emphasise some of the points which the noble Lord brought out.
The second thing that I should like to say by way of preliminaries is this. Some of your Lordships may have felt until they heard the noble Lord speak that it was scarcely justifiable to bring the Anderson case—which in essence, at any rate originally, was a simple little matter of a summary trial—before this House on a second occasion in a full-scale debate. I hope that that is a view which few of your Lordships will share. In the history of this country some of the most important legal cases, and some of the cases that have had the most profound influence upon our history, have been those which in essence appeared at first to be matters of trifle. One thinks of course of John Hampden and his resistance to ship money. That in itself appeared to be a very small issue. It involved great constitutional questions. One thinks of the case of the Archer-Shee boy, which concerned the theft of a five-shilling postal order—a case which divided the nation for a period of something like 930 two years and resulted in the vindication of the reputation of that boy. Therefore I hope that this debate will not be dismissed because this was a minor summary offence committed by somebody and not suitable for your Lordships' consideration.
Indeed, one of the most striking facts about this case, it seemed to me, as I pondered over what I might say, is the original apparent simplicity of it. One may state what the issue was in a couple of sentences. As Lord Drumalbyn explained more extensively, what happened in this case was that on one evening in December 1972 there were two girls in the neighbourhood of Prestwick. A man came up to them driving a motor car, and made an improper suggestion to them. Subsequently Mr. Anderson, who on that particular evening had been staying in a hotel at Troon, about seven miles away, was charged with the offence. In his subsequent trial the only evidence that was produced against him leading to a conviction was the evidence of identification by the two girls. There was no other corroborating evidence of any kind. He was convicted by the sheriff. He appealed to the Appeal Court in Scotland, and his appeal was rejected. What could be simpler than that? It is the kind of case which I suppose comes up in the magistrates' court in this country and in the sheriff court in Scotland probably every day of the week. The only significant feature of it was perhaps the character and the personality of the defendant who was charged.
Contrast that, my Lords, with what has happened since. I do not suppose that there has ever been a case tried summarily in a magistrates' court or in a sheriff court which has subsequently been the subject of so much scrutiny, examination and re-examination as the case of Mr. Anderson. There may be comparable cases—I do not know—but it would be difficult to believe that any similar case has been subjected to so close an examination as this case. At the end of the day, and in the course of subsequent years, a great number of people—individuals and committees—have come to the conclusion which was expressed by Justice when it said that there was reason to believe, and that it was led to the conclusion, that substantial grounds exist for believing that a miscarriage of justice may have occurred.
931 I want to deal almost exclusively with the question of what is the function of the Secretary of State in the exercise of the Royal Prerogative, but first I wish to make one or two preliminary observations. When we speak of a miscarriage of justice, what do we mean? We—and I speak now for myself, and I think, also for Justice—do not mean that it has been in any way proved that Mr. Anderson was innocent. Short of a miracle no one will ever know whether or not he was innocent. Short of a miracle, or short of discovering the person who actually committed the offence, there is no way in which it can be positively proved that he was innocent. That is not conceivable. What we mean by a miscarriage of justice is that when one looks at the case as a whole it has not been demonstrated —indeed, we are miles from having it demonstrated—that Mr. Anderson's guilt was proved beyond that reasonable doubt that the law requires.
I turn now to my second preliminary point. I would concede that a belief, however well founded, that there was a miscarriage of justice in this case would not, in isolation, justify a call for the Secretary of State to invoke the Royal Prerogative. That is not sufficient in itself. However, consider the position when one finds that the matter goes very much further than the belief of an individual or of a committee, and when one finds, as one does in this case—as I hope to be able to demonstrate in a few moments—that if there was a miscarriage of justice, it was not mere human fallibility. It was not the fault of the sheriff who may have misdirected himself. After all, in cases of this kind, and in more important cases, we are all fallible, and from time to time in isolated cases there must be miscarriages of justice. The contrast, and the difference in this case, is that it has been demonstrated—as indeed I shall demonstrate—that the conviction of Mr. Anderson in the court in Scotland was directly attributable to, if it did not positively result from, grave defects in the whole of the Scottish criminal procedure.
I shall draw attention to only two of these major defects. Let us consider the first one. In this case Mr. Anderson was convicted on identification evidence which was not corroborated in the court by evidence of any other kind. I do not 932 think that is challenged. Since the time he was convicted in 1973 there have been two Government-appointed committees, or working parties, which have reported on this very problem of identification. The first was the Devlin Committee which produced the Devlin Report of 1976. That report concerned only England and Wales, but its relevance to the case of Mr. Anderson is, I suggest, that its main finding and recommendation was that eye-witness identification is insufficiently reliable to convict, unless corroborated by evidence of another sort, or unless exceptional circumstances are present.
I say without fear of being contradicted that in this case there was no evidence of another sort to corroborate the evidence of the two girls about identification. If one looks for exceptional circumstances one finds—and these may be exceptional; I do not know, but I should have thought that they might be—-that the exceptional circumstance of the case was that the girls' evidence describing the offender and the car which he used bore no relation to Mr. Anderson or to the car which he was driving. That was the only exceptional circumstance in the case. Because of the Devlin Report, and the fact that it has been accepted and acted upon by the Government, and cases where there was some doubt about whether the identification evidence was sufficient have been referred back by the Home Secretary to the Court of Appeal, am I not justified in saying that if Mr. Anderson had had the good fortune to have been tried in England after the Devlin Report there is no possibility that he would have been convicted?
The second report on this question was the Bryden Report, which was produced by a committee, or working party, set up in September 1976 for the specific purpose of considering the law in Scotland of identification by eye-witnesses as it might be affected by the recommendations of Devlin. As we have been told, that committee did not accept in toto the principle which Devlin had recommended; that is to say, that you ought to have evidence of another kind, or there ought to be exceptional circumstances, before a person can be convicted on eye-witness evidence alone. What that committee said was that different circumstances prevailed in Scotland, and they recom 933 mended that there should be a change in the procedures. But when they came to deal with what are called informal identifications—that is to say, identifications which do not take place on an identification parade—the one recommendation they made was that what had happened in the Anderson case was wrong. That was the whole of their comment upon that aspect of the matter. So we had those two reports.
May I put two simple propositions for your Lordships' consideration? If the Bryden Committee reported, as they did, that the method which had been used in this case to try to identify the offender was wrong, and if, as I say, had Mr. Anderson been tried in England under the English procedure after Devlin he would almost certainly have been acquitted, are we to say that the Secretary of State is impotent to take those two matters into consideration? If we are told by these Government committees that the procedures were wrong, that the evidence was inadequate, and that if Mr. Anderson had been tried today, at any rate in England, he would have been acquitted, is that not something which the Secretary of State ought to be prepared to take into consideration? Are we impotent to try to put that matter right?
The second major defect in the procedures is the other one to which the noble Lord, Lord Drumalbyn, has referred: that in Scotland there is no appeal against a summary conviction except by way of stated case. I do not want to cite to your Lordships again—certainly not to the Scotsmen—what that procedure consists of, but what it amounts to is this. If a person is convicted in a summary trial by a sheriff and he then appeals, the form that the appeal takes is that the sheriff who dealt with the case draws up a stated case setting out the facts that he found and the reasons for his decision. That then goes up to the Court of Appeal, and all that the Court of Appeal can consider is that doucment and any legal argument that may be addressed to them. The result is that, under that procedure, the only material before the Appeal Court is what the sheriff has thought fit to give them. The second thing is that they do not see the witnesses, which of course applies in this country too; and the third thing, 934 which does not apply in this country, is that under that procedure there is no method by which you can check the accuracy of the sheriff's report against the transcript, because there is not one. It is a recipe for error, is it not?
One contrasts with that the situation in England—the situation as it has been for a very long time. If a person is convicted before a summary court in this country, he has a right of appeal to the Crown Court, and when it gets to the Crown Court there is a trial de novo. There is a complete rehearing; all the witnesses are called as before, and indeed any others that may be available. On the occasion of the last debate, the noble and learned Lord, Lord Hailsham—and the noble Lord reminded us of this—who intervened for only a brief moment said (Hansard, 21st January, col. 559) that after his long experience he considered that a completely new trial on appeal to the Crown Court wasan absolute necessity for the protection of the subject".Mr. Anderson's case is a cautionary tale illustrating all the risks of the Scottish appeal procedure. There is first of all the fact that in the ordinary way there is no transcript. In this case—and it must be one case in a thousand—permission was given for a transcript to be made; and as a result of that transcript having been made we are today in a position to make a comparison between the stated case and the evidence which was actually given. What does this comparison disclose? It discloses two things, in particular, which my noble friend, if I may call him that, dealt with in greater detail. It shows, first of all, that the stated case omitted factors and facts of crucial importance, and that in at least one instance there was a grave misrepresentation of the evidence which had been given in court on a crucial issue; that is to say, the sheriff said that the girl who said that she had seen the number of the car had had no clear view, which was a complete distortion of what the girl had said, because she had replied that she had had a view which was quite distinct.
The other part of the defect in the Scottish appeal system is this matter of proposed adjustments to the stated case. Much the same thing goes on in this country when you have a case stated to 935 the Divisional Court, where only a matter of law is involved. In that event, what happens is that, if there is an appeal against, say, a magistrates' court's finding, the clerk to the justices draws up a draft of the case which is to be sent to the High Court; the defence and the prosecution are then called in to see whether they want to make any suggestions as to its amendment; and then, when it has been agreed by all parties as being a correct record of what happened, it goes up to the Divisional Court.
In this case application was made to the sheriff for ten pages of adjustments to be made. The Crown, as the noble Lord has said, refused to agree to any amendment whatever, except on one matter of small procedural importance. The sheriff accepted the representations of the Crown en bloc, and refused to make any amendment except on the matter of procedure. So his stated case, which was a travesty of what had happened in the court, went up to the Court of Appeal for their consideration.
Those, then, are the two grave defects in the Scottish procedure to which I wanted to draw attention. But, just as in the case of identification evidence there have been two committees—three committees if you include the report of Justice—which have considered this case, so there has been the Thomson Committee, which was charged with the duty of examining the Scottish appeals procedures to see whether any changes were required. They made their report on the 17th December of last year, as we have already been told. I can most simply summarise what they said by quoting from the Scotsman on the day the report was produced. They said, and said quite rightly, that the Committee had recommended sweeping changes in the appeal procedures.
By way of keeping the thing short, in their summary of the relevant recommendations of that committee, they said:The Committee say that the stated case has been the subject of much criticism over the years. This was mainly on the grounds that cases were often badly stated. Sheriffs and district court judges might make findings in fact which were not justified by the evidence or omit relevant facts or incorporate deductions as if they were proved or admitted facts".You might think that the Committee were writing about the Anderson case. The report goes on to say: 936They"—the Committee—propose that appellants should state their grounds when making an appeal and could add further grounds later".They also recommended a mandatory hearing with both parties to adjust a stated case. Even though a judge rejected adjustments, they would he included in the appeal with the judge's reasons. All that was recommended by the Thomson Committee and there you have the same condemnation of the Scottish appeals procedure as you had in the Devlin Report and the Bryden Report on the matter of identification.
What is the resulting position? The resulting position is that the outcome of Mr. Anderson's case would certainly have been one of "not guilty" if he had had the good fortune to be tried in England for that offence after Devlin. The second conclusion which I suggest can be unquestionably drawn is that the result of this case might well have been different in Scotland if the recommendations of the Bryden Committee had then been available and had then been implemented and/or if the recommendations of the Thomson Committee about the appeal procedures had been in existence and had been implemented.
So the resulting situation is this: that a man has been convicted upon the sort of evidence and according to certain procedures which three Government Committtees have condemned as being wrong. That is the situation. There is no escaping from it by the noble Lord or by the Secretary of State.
Can I turn now to what the noble Lord was telling us about the prerogative? The noble Lord—and I am bound to say that it must have come as an enormous disappointment to all those interested in this case—appeared to be satisfied to rehash and repeat what he had told us in the earlier debate on 21st January 1976. That is extremely disappointing and, in my submission, is entirely wrong because all four reports—Devlin, Bryden, Thomson and "Justice"—have all appeared since the noble Lord told us on that occasion what were the functions of the Secretary of State in the exercise of the prerogative. I do not need to remind the House of what the noble Lord said then, for he has repeated it. He said, quite 937 rightly, that it is not the business of the Secretary of State to re-try a case; that is not his function. He said, quite rightly, that the primary duty of the Secretary of State is to uphold the law; that is, that in the vast majority of cases it is not for the Executive to interfere with the decisions of the Judiciary.
However, the very existence of the prerogative of Parliament obviously implies that there must be cases where the judicial system breaks down. The noble Lord on that occasion when he went on to define what was the function of the Secretary of State put it in this way. This was where he placed his emphasis. He said:What is wanted is some new substantial information of a kind which was not available to the court".That was the test he put forward. He emphasised it more than once. Towards the conclusion of his speech he emphasised it again and said that this was what was so important. He said:I turn now to the relevance of these points"—that is, some points about the history of the case—to the Secretary of State's functions"—and this is very important.It might be suggested that they are factors"—the things that he had been talking about previously—to be weighed in the scale, as there are factors of this kind in many criminal cases but they are issues already before the court".Later on, when the Secretary of State was dealing with the criticism of Lord Robertson of his decision in the Patrick Meehan case, he adopted different criteria. Perhaps I may quote to the House the words which he used about the duties and function of the Secretary of State in exercising that prerogative. Lord Robertson, as the House will remember, had criticised the fact that he granted a pardon at all to Patrick Meehan. In his reply in the House of Commons on 8th December 1976, the Secretary of State said:The existence of the Royal Prerogative of mercy is an integral part of the constitutional system which exists to protect the citizen against possible miscarriages of justice. The Secretary of State should not hesitate to recommend the exercise of the 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".938 There is no mention there whatever of there being a necessity or a need for new information which was not available to the court.
I have kept the House for too long. I will finish in this way. Supposing that the noble Lord, Lord Kirkhill, is right about this and that the essential test is: is there new evidence which was not before the court? I would contend—and, I suggest, contend with some reason—that if that was the state of the law and of the constitutional convention, even then in this case there was information which was not before the court. The use of the word "court" in the Scottish context is ambiguous. Are you talking about the court of first instance or are you talking about the Court of Appeal; or, when you speak of there being information which was not available to the court, are you talking about both courts? If it means that there is new information in the sense that it was information which was not available to the Court of Appeal then, unquestionably in this case there is new information.
However, I would prefer to accept the criteria which were laid down by the Secretary of State in the quotation that I have just made. It seems to me that is what the convention is and that that is what the convention ought to be: that is to say, the Secretary of State in considering these matters shall consider all matters of fundamental or serious import and their bearing on the question as to whether there has been a miscarriage of justice. Let me finish in this way. If that is the correct criteria—that the Secretary of State should look at everything that has happened—how can be fail, when he finds (as we all find) that three Government committees and the unofficial committee of Justice have all pointed to the grave faults in the procedures and the laws under which Mr. Anderson was convicted, to find also that there are not in this case extraordinary circumstances which would justify the exercise of the prerogative?
§ 7.50 p.m.
§ Lord GARDINER
My Lords, I have the feeling—I may of course be wrong—that this is one of those cases which are simply not going to lie down. I have had some experience of those cases, as has Scotland since the Oscar Slater case.
939 We first considered this case in 1974, when I was chairman of Justice. Ordinarily, we do not concern ourselves much with Scottish cases, not that we do not have Scottish Members but because most of us are not Scottish lawyers, and because English lawyers as a whole are brought up to believe that Scottish law and procedure is, on the whole, better than ours. But, being introduced to the case, in 1974 we appointed a sub-committee which had the advantage of reading the transcript—which of course the Court of Appeal did not—and they reported and went into the matter very fully.
The council resolved that the conviction was unsatisfactory and that a public inquiry was needed. By that time there had been a Petition; there had also been discussions in Parliament. We had our debate in this House, thanks to the noble Lord, Lord Drumalbyn, and, as I understood my noble friend Lord Kirkhill on that occasion, he was saying that the Secretary of State's mind was not closed, that of course we had still to await the reports of the Thomson Committee and the Bryden Committee when the matter could be considered again.
The three things which have happened since then are: the report of the Thomson Committee; the report of the Bryden Committee, and the report of the Justice Working Party. This working party, it will be observed, is all-Scottish. It included Sheriff Prain, CBE, of the Scottish Bar, a sheriff and a past-president of the Association of Sheriffs; Professor Wilkin-son of the Scottish Bar and Dean of the Faculty of Law, Dundee University, and a former full-time sheriff; magistrates, and so on. Their unanimous first conclusion is this: there are substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts. I still do not quite understand the difference regarding the Royal Prerogative between the Secretary of State—for whom, if I may say so, I have a high regard—and my noble friend Lord Kirkhill. But they have said entirely different things. What the Secretary of State said in the other place on the 8th December 1976 at (column 455 of Hansard) was this:The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against a possible miscarriage of justice. The Secretary of State should not hesitate to recommend the 940 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".Not a word about the necessity for new evidence or the qualifications to which my noble friend referred in that last debate, and again today.
So far as the Scottish procedure as a whole is concerned, what my noble friend said when we discussed it on the 21st January 1976 (at column 554 of Hansard) was this:I am not aware of any general feeling of disquiet in Scotland about these courts and their procedures".I cannot help feeling that he must have been surprised when he read the report of Lord Thomson's Committee. One of the first things that they said, in paragraph 1.08, was:The procedure has been the subject of much criticism, including Parliamentary criticism, over the years, …".If, as I suspect, he read the next day's leading article in the Scotsman, he must have been even more surprised. It said this in the editorial:The findings of the final Thomson Report will be widely welcomed as going a long way to curing one of the glaring defects in Scots law, the quite unjustifiably restrictive rights of appeal in summary cases. So far in Scotland such appeals have been possible only on points of law, and the facts of a case have been absolutely excluded from further consideration after the initial hearing. The implicit assumption was that the judge who presided then must have got his interpretation of the facts indisputably right—an absurdity, for humans, even legal humans, are after all fallible. This archaic proceeding was further distinguished by being one area where Scots law was clearly inferior to English law, which allows not just an appeal on fact but in the most extreme instances even a complete retrial".The article concluded:It would be no exaggeration to say that the case of the unfortunate Mr. D. C. Anderson has done more than anything else to expose the unsatisfactory state of the law on this point: no doubt it was that which set the Thomson Committee on to the problem in the first place. If the law had been different three years ago, Mr. Anderson would at least have had the right to a thorough examination of the grounds on which he claims his innocence; as the law stands, he has no such right. The Thomson Committee has in effect admitted that Mr. Anderson was hard-done-by, in the way the procedural conventions restricted his position as an appellant if in nothing else. Any remaining reasons why a public inquiry should not he conducted into his conviction have now disappeared. If the authorities are so sure of their facts, they have nothing to fear, and a great deal of public disquiet would he stilled".941 The Justice report is very full. I am particularly anxious to be very short. I am not going to read any part of it—I have only read the first conclusion. I should have thought that on any view of the case there must either be a public inquiry or an exercise of the Royal Prerogative, unless in some respect the Justice report can be shown to be wrong. My noble friend Lord Kirkhill has not pointed to anything in it which he thinks is inaccurate. He has not pointed to any conclusion reached in it which he thinks is not justified by the facts they found.
As I am anxious to be very short I have neglected the Bryden Report. The Police Manual is not an Act of Parliament; but it is accepted by all the chief constables of Scotland, and the Bryden Committee clearly found—contrary to what my noble friend told us last time—that the police did wrong in not following the only rule in the Manual which applied where there was not to be an identification parade and the accused was not in custody.
I would only say that if the Justice report is right, it falls four-square within what the Secretary of State said about the exercise of the prerogative and when it should be exercised. I ask my noble friend when replying to do three things: first of all, could he tell us of any point in the Justice report which he thinks is not justified? Secondly, will he give us his legal authority for the view which he takes of the Royal Prerogative as distinct from that expressed by the Secretary of State about new matters, and so on? I should have thought that it was difficult for any Minister to put fetters on the exercise of a Royal Prerogative.
Thirdly, would he make some reply to the charge which the noble Lord, Lord Drumalbyn, has made that one of the things which went wrong here, and went wrong in the appeal, is that the Crown, for whom my noble friend is speaking, opposed all the suggested adjustments to the record? Anybody looking at the suggested adjustments could see they obviously ought to have been included. The sheriff apparently merely accepted the blanket opposition of the Crown. This is not an allegation of bad faith; but it is a serious allegation to make that it was the Crown which was responsible 942 for so much that went wrong on the appeal and that so far, despite hearing the speech of the noble Lord, Lord Drumalbyn, my noble friend has made no reply at all. I would venture most respectfully to hope that at the end of this debate he may be able to deal with those three points.
§ 8 p.m.
§ Lord MACKIE of BENSHIE
My Lords, I intervene in this debate because I think that probably a lay Scotsman's view should be heard, and certainly that justice should be seen to be done in the eyes of the layman as well as in the eyes of the lawyer. I feel strongly that Mr. Anderson has not had a fair trial in this case. The procedure to which learned lawyers have referred time and again, in this debate and elsewhere, for an appeal against a summary trial is well known in Scotland by any intelligent layman to be absolute nonsense. I have had it summed up to me in non-legal language when a man who had lost his appeal said: "It's a piece of nonsense. How can you appeal when you are appealing against a judgment by a fellow who states the case to the superior court?"
Of course, it is wrong, and has been seen to be wrong by the ordinary citizens of Scotland for a long time. I find it very difficult to understand why the Secretary of State has not given way to the many appeals made to him by extremely distinguished bodies before this time. That in itself, I think, is grossly unfair. How much does he want? This present debate has already pulled out categorical statements by three very distinguished lawyers, saying that they believe an injustice has been done. He is being asked to exercise the Royal Prerogative and the noble Lord, Lord Drumalbyn, also says that an alternative would be to hold an independent inquiry. In my view, this is the very least he can do.
There is no question to a layman, on reading the evidence, that Mr. Anderson did not get a fair trial. There is no question at all about that to the layman. This is backed up by the lawyers. I think the opinion of this House will be very strongly against the attitude of the Secretary of State, and I appeal to the Minister to consider whether or not these deep considerations of the Secretary of 943 State might not be wrong. Certainly, the lawyers are against him, and I think I can say that, looking at the evidence, the laymen in Scotland who are interested also against the attitude of the Secretary of State and believe the least he could do would be to hold an independent inquiry.
§ 8.3 p.m.
§ Lord STRATHCLYDE
My Lords, I am no lawyer; I am a layman, like the noble Lord who has just spoken, but I cannot avoid the feeling that an injustice has been done in this case. I can only hope that, after the course this debate has taken, and considering the very eminent people who have spoken in it, further consideration may be given to the case by the Secretary of State. I think that is what we would all like to see. I am sure that, when I say that, I am speaking for very many people in Scotland, who feel exactly as I do about this matter.
§ 8.4 p.m.
§ Lord MACLEOD of FUINARY
My Lords, I shall not detain the House for long. The essence of the Motion before us is that the Secretary of State for Scotland should reconsider the position of Mr. D. C. Anderson in light of fuller information and that he should take appropriate action either by advising Her Majesty to consider exercising the Royal Prerogative or by instituting an independent inquiry as to whether substantial grounds exist for believing that a miscarriage of justice may have occurred.
This is essentially a legal issue which has been presented to us in no fewer than 27 closely-printed pages of foolscap. Those pages speak for themselves—indeed, I would say they shout for themselves—as to the immediate need for at least an inquiry, Indeed, if I am honest, I am personally tempted to hope that in the light of the Justice report alone steps should be taken at once to approach Her Majesty regarding the possibility of exercising the Royal Prerogative.
As I am not a lawyer, I do not propose to enlarge on the legal issue which has been so well represented on both sides of the House. Why, then, do I intervene? It is, in terms of the last noble Lord who spoke, to represent the growing concern among the people in Scotland over both the legal and personal aspects. At an 944 earlier stage of the on-going inquiry it was stated on behalf of the Government that there was little evidence of public concern. There has been much discussion about that. It might well have been true at the actual date, but since then, as we have also been told, the up-to-date papers in the case prove that at least 1,000 persons have expressed their concern. I doubt whether there is any other legal issue on which 1,000 persons have expressed their concern.
Those people include judges, in their personal capacities, a panel of lawyers, including a professor of Scottish law, a sheriff and no fewer than 100 members of the legal profession in Scotland; solicitors and advocates, some drawn together as a working group indeed by the appointment of the Secretary of State for Scotland and the Lord Advocate to examine:… identification procedure under Scottish law, as aroused by this and other cases".That was in April of this year. Presumably that was set in motion by such things as leaders in the Scotsman and comments by Press correspondents in December of last year regarding the inadequacy of Scottish law as compared with English law, as has been so strongly stated, and rightly so, here.
There is little doubt that Scottish law will soon be amended by the inadequacy of its present terms; but I am certain there will be nationwide comment if the matter is left to a defect in the law alone: that is, if no parallel action is taken regarding the plight of the person whose particular case has given us the possibility of discussing the inadequacy of the law. This personal aspect is becoming very much a matter of public concern in Scotland.
This leads me to the only other point I wish to make. Could I, to give it edge, put it this way: let us suppose that you or I found ourselves involved with an alleged blot on our character and involved publicity. I care not whether it be labelled as some psychological disorder or moral depravity. Might not our first reaction, if we found ourselves in that position, be for the good name of our family or the fair name of our profession? Might not our first reaction, justified or not, be to resist the accusation openly and to battle on?
However, supposing that resistance bore no fruit? Supposing you or I were 945 guilty. Then, I ask you, would any of us go on and on and on through the years, if in fact we were guilty and inwardly feared the ultimate revelation of a public inquiry? Would we not, again for the sake of our family and for the reputation of our profession, after the first flurry begin to retreat from our protest, begin to pack in and let things take their dismal course to their inevitably sad conclusion without further inquiry?
What impresses me under this heading is the unswerving insistence of Mr. Anderson, who can get neither reprieve nor public inquiry—his unswerving insistence to go right on through the years because he knows it is not to the bitter end but to the ultimate restoration of his place in his profession and in the sight of the public if an official public inquiry is instituted. It is this unswerving determination through the years to go right on that convinced me of the justice of his case. If it is not fully inquired into officially, the public outcry in Scotland will not be just about the inadequacy of the Scottish law in these regards. But it will be about a man who, in a public position, has been publicly discarded, without having been given the chance of a public and official hearing. It is for this reason that I plead with your Lordships to vote either that the Royal Prerogative be sought now, or that the fullest and most public inquiry be instituted now.
§ 8.10 p.m.
§ The Earl of LISTOWEL
My Lords, I start by what I intended to end with, and that is by endorsing the plea in the last sentence of the speech of the noble Lord, Lord Macleod of Fuinary. But I have some experience of occasions when the House has been acting in a quasi-judicial capacity on a matter of private rights, which is how your Lordships have been asked to act on this Motion of the noble Lord, Lord Drumalbyn. For Private Bills always raise these questions of private rights, and they are decided by Committees of your Lordships' House, which of course sit in a quasi-judicial capacity. It has been my duty on such occasions to make sure that your Lordships are provided with the relevant evidence submitted by the Promoters and the Petitioners, and presented in the way 946 they choose, whether by counsel or in person. That is the way in which we have decided in this House that evidence must be considered, in order to give a fair hearing to the Promoters of Private Bills, and to Petitioners against them, when your Lordships have to decide these matters in a judicial capacity.
Bearing in mind our own procedure for ensuring that all relevant evidence to give such a fair hearing is available to Committees of the House, I have studied the procedure followed for the submission of evidence in the Anderson case, and it has caused me serious concern—concern I share with the three noble Lords who have deduced this Motion, and with all noble Lords who have spoken in the course of this debate, apart from the noble Lord, Lord Kirkhill. I should like briefly to explain my reasons for this concern.
It appears, as the noble Lord, Lord Drumalbyn, has explained clearly, that in Scotland evidence on appeal from a summary court is limited to a stated case prepared by the judge of first instance—in this case, the sheriff. The Appeal Court can take into account only the sheriff's statement and the legal argument made on it by the parties. The Court has no power to take into account evidence submitted by the appellant alone. This procedure excluded from the cognisance of the appeal judge important evidence of fact that Mr. Anderson regarded as essential to his case, for the sheriff—as he was entitled to do—refused to include this evidence in his statement.
The sheriff went on to refuse a hearing on the rejected adjustments, so that none of this evidence was argued in either court. These facts, in Mr. Anderson's view vital to his case—although he had no choice in the matter—were contained in 10 pages of additions to the sheriff's statement, the so-called adjustments, which Mr. Anderson had asked the sheriff to include but which he rejected without a hearing. I cannot conceive that any noble Lord, hearing a description of this kind, would say that this was a fair way of presenting evidence, or a way in which we would present evidence in the conduct of our own affairs in this House.
It was made clear in the Report of the Thomson Committee, to which reference has already been made, that that Com- 947 mittee regarded the procedure I have described as unsatisfactory. Lord Thomson has recommended that the High Court should be given "specific power to look at rejected adjustments", as well, of course, as at the sheriff's reasons for their rejection. That Committee also recommended a mandatory hearing for disputed adjustments. So there is no doubt, as the noble Lord, Lord Foot, pointed out, that the Thomson Committee had criticised very severely, and wishes to alter, the present procedure and the procedure that applied in the Anderson case.
Whether this unsatisfactory procedure results in a miscarriage of justice depends on the circumstances of a particular case. I take the view that the importance of the facts was not available to the Appeal Court in the Anderson case. Facts relating to the identification of Mr. Anderson and a possible alibi cast considerable doubt upon the verdict. I am no less concerned about the evidence of eye-witness identification by two 14-year old children. Mr. Anderson was convicted on this evidence alone, as has already been said, and it has not been contradicted by the noble Lord, Lord Kirkhill, or by any other speaker in this debate.
It will be remembered that, in his report—and this report has been accepted by the Government—Lord Devlin would not allow conviction on eye-witness identification alone. He said that there also had to beexceptional circumstances or substantial evidence of another sort".Again, no one denies that in the Anderson case there were neither exceptional circumstances, nor substantial evidence of another sort, to corroborate the eye-witness evidence of identification. Is it really possible for anyone to say that the case against Mr. Anderson has been proved beyond any reasonable doubt? That, may I remind your Lordships, is the question before you this evening; not the question of whether Mr. Anderson was guilty or innocent.
Since the last debate in January 1976, four reports by great authorities on the law have been published, and their findings increase the doubt about the verdict in the Anderson case. There was the Devlin Report, to which I have 948 already alluded. Then there was the Thomson Report of December 1977, recommending changes in appeal procedure from the summary courts to remedy the defects in present procedure, defects which I believe prevented a fair hearing for vital evidence in the Anderson case. There was also the Bryden Report of April 1978. After that Report, there was a sharp reference by Sheriff Bryden, which has been mentioned, to the breach of police convention—it was not a police rule—by the identification of Mr. Anderson by two witnesses when they were taken together.
Finally, there appeared this year the report of the four distinguished Scots lawyers who examined the Anderson case on behalf of Justice. Here I must say that the House owes a debt to the noble and learned Lord, Lord Gardiner, and to those distinguished lawyers for bringing their minds to bear on this case, and for producing such a very interesting and valuable Report. It was their conclusion that:substantial grounds exist for believing a miscarriage of justice may have occurred".In view of all these new developments, which favour Mr. Anderson, since our last debate in 1976, and of the increasing concern of public opinion in Scotland, as shown by responsible articles in the Scottish Press—and the noble Lord, Lord Macleod of Fuinary, has referred to public opinion in Scotland—I am sure that there are many noble Lords, in all quarters of the House, who wish the Government to reconsider their decision not to reopen the case. I hope that they will now be willing, at least, to set up an independent inquiry which would finally remove the doubt that hangs over this case by disclosing grounds which would justify a free pardon or confirm the verdict of the courts. There is a great cloud of doubt that hangs over the whole case, and I am sure that that is the only way in which this great cloud of doubt can be removed.
§ 8.19 p.m.
§ Lord AIREDALE
My Lords, I intervene for only a moment to say a word about the exercise of the Royal Prerogative, which is one of the remedies asked for in this debate. The Royal Prerogative is usually exercised by what is called a free 949 pardon. "Pardon", in ordinary language, denotes forgiveness for a sin actually committed. But the effect of a free pardon is quite different from that. The effect of a free pardon is beautifully stated in a single sentence by Sir Frank Newsam, who was a Permanent Under-Secretary of State for the Home Department, in his book entitled The Home Office. On page 114, Sir Frank wrote:A Free Pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted".This curious expression "free pardon" comes down to us from the days when it was thought to be unwise to admit to the uneducated masses that the High Court was capable of a miscarriage of justice. But in these more sophisticated times I suggest that it is time to get rid of this unfortunate expression "free pardon" and replace it by a happier and more accurate expression which denotes exoneration.
§ 8.21 p.m.
§ Lord SHINWELL
My Lords, one preliminary observation and it is this: there is no indictment against the Minister of State. He is not in the dock. It is the Secretary of State whom we indict, for he is vested with authority and if he is short of the necessary authority he can obtain it from his colleagues in the Cabinet. I have not the least doubt that if we had a full House tonight in your Lordships' House, and after listening to the speeches of eminent lawyers like my noble friend Lord Gardiner and the noble Lord, Lord Foot, and eminent Members of the House like the noble Earl, Lord Listowel, and so on, if a Division were taken the Government would find itself on the other side of the political fence.
I heard my noble friend Lord Kirkhill announce in such familiar language— how often have I heard it—"if only new evidence could be produced, then we might reconsider the matter". How often has that been said? I have heard it over the years. Let me tell my noble friend Lord Kirkhill that, almost before he was born—although perhaps I am not correct in that description—when the famous Oscar Slater case came before the country I was not involved but I happened to be 950 living in the area where the murder was committed, right across from where I was living. I recall that the accused produced the alibi that he was engaged in a gambling venture with a number of his colleagues, perhaps disreputable colleagues, because there was no doubt about it that he was an inveterate gambler and, although not a gangster, was a notorious kind of person. But none of that was taken into account.
What happened? He served 18 years in that Scottish prison. During those 18 years—and I recall it so vividly—the late Conan Doyle initiated, or pursued with agitation, a plea on Oscar Slater's behalf, and many of us living in Scotland at the time joined in. I remember that time and again when the matter came before the legal gentlemen associated with the Governments that were in existence, we had the same, the familiar, conventional language, "if only new evidence was submitted". I repeat that I have heard it so often I am sick and tired of hearing it, and my noble friend Lord Kirkhill must find some other kind of language. Even if he cannot find better arguments he must find some rather more suitable language in order to produce what is regarded as the defence—I am sorry to say, regretfully—on the part of the Government.
Moreover, what is this about? I do not know and have have never met Mr. Anderson, but I have been interested in the case from the very beginning. We talk about human rights. If perhaps the noble and learned Lord, Lord Hailsham of Saint Marylebone, who is very philosophic on matters of that sort and very realistic also, initiated a debate on human rights, the House would be full and we would all be glorying in it because we want freedom for everybody. Human rights must be established without any reservations or qualifications. We would glory in that. But here is an example of human rights to be vested in a person who has been convicted on the evidence of two young persons.
I do not impute any wrong motives to those young persons, but they were two young persons who, apparently under the direction of the police at the time, identified the person who is accused of committing an act which, if Mr. Anderson had been accused on this side of the border, would have led at least to a not proven decision. Incidentally, in the Scottish courts when 951 the case came before the sheriff, if there had been a verdict of not proven, it might not have been entirely satisfactory but it would have been better leaving it as it is than to bring about the ruin of a man who, so far as the evidence enables us to judge—and particularly because of the discussions that have taken place all along the line, and the arguments against the conviction and all the rest of it—should not continue to suffer as he is doing.
I am not concerned about the emotional side of it as the noble Lord, Lord Macleod of Fuinary was, although I understand his sentiments and perhaps on some other occasion would applaud them, but I regard this matter objectively. If only the noble Lord, Lord Kirkhill, could prove to me that the evidence that was presented by the police and by the procurator fiscal—who by the way was as stubborn as a procurator fiscal in Scotland can be, and I have had some experience of them myself, as noble Lords know—was so overwhelming on the part of the procurator fiscal that the sheriff, with such a mass of evidence, so abundant, so overwhelming, had no alternative but to convict Mr. Anderson, I could understand it. There must be general agreement in the House at the present time and in Scotland too—although perhaps with some exceptions—that the question of Mr. Anderson's conviction on the offence of which he was accused admits of reasonable doubt. Surely that could be agreed. There is some reasonable doubt as to whether he should have been convicted, and in those circumstances I do not care very much and am not sure about the prerogative of mercy, about a pardon, but I think there ought to he another inquiry.
The Justice Report that has been referred to, with all its legal subtleties and legal arguments, and the forensic presentation of the case should all be taken into account. Then, although Mr. Anderson would not be the happiest man in the world, at any rate he would have a sense of freedom, the high moral principle of human rights would have been established and we could claim that we were to some extent responsible.
I just want to say one thing further. If the noble Lord, Lord Drumalbyn, wants to divide the House tonight, I shall be 952 right by his side. That would not mean that I was seeking to indict the Government or that I wished to prevent the Government winning the next Election. Nothing of the sort; dismiss all those political suggestions because they have nothing to do with the case. But I should like this House to demonstrate by a Division that it believes that here we are presented with a miscarriage of justice; that there has been something wrong—whoever may be responsible—and that the noble Lord, Lord Kirkhill, should be asked, deliberately, objectively, but wisely, to go back to the Secretary of State and tell him that, whatever they may think about the House of Lords, threatened with extinction and all the rest of it, when it comes to a question of human rights we have as good an understanding of the matter as the Secretary of State or even the Members of another place, although I believe they might be on our side.
So I am on the side of the noble Lord, Lord Drumalbyn, and indeed I am on the side of everybody else who has spoken. By the way, nobody has spoken in support of the noble Lord, Lord Kirkhill. Has he noted that? There is nobody on his side. I shall challenge the House: is there anybody who would like to speak on behalf of the noble Lord, Lord Kirkhill? Is there any Member of your Lordships' House who will raise his hand and say: "I am on the side of Lord Kirkhill"? Nobody! So let it go forth from your Lordships' House tonight after this debate, to the country and to Scotland and to everybody concerned—and particularly to Mr. Anderson—that your Lordships' House is on the side of Mr. Anderson and wants to re-establish his reputation, so that he can face the world and that he and his family can glory in the fact. Let us do that; it is the least that can be expected of us.
§ 8.32 p.m.
§ The Earl of MANSFIELD
My Lords, after the ringing declaration of the noble Lord, Lord Shinwell, your Lordships may well conclude that there is little, if anything, more to be said, and partly because of his speech and partly because of the overwhelming expression of dismay by your Lordships from all parts of the House at what has happened in this case of Mr. Anderson, I can keep my remarks 953 brief and, I hope, truncated. May I make it clear that, although I speak from this position geographically in your Lordships' House, this is no Party matter and I speak for myself. I speak as a member of the English Bar who happily for many years earned his living prosecuting and defending in many cases similar to that of Mr. Anderson, and it was only because of the death of my father which transferred my earning capacity to other fields and my advocacy, such as it is, to your Lordships' House, that I find myself here this evening.
This has been a fascinating debate, not least because it shows that our Parliamentary institution, at a time of considerable pressure, when perhaps there is little time to debate things which many folk think should be debated, still finds time to conduct a Parliamentary inquiry in the form of a debate into the affairs of one single individual who is no doubt aggrieved by what has happened to him.
When my noble friend Lord Drumalbyn asked me to interest myself in his Motion I am bound to say that I did so and found it disturbing in more senses than one. I found a number of features about the whole matter which troubled me considerably, and quite obviously have equally troubled many Members of your Lordships' House. One has to ask the question: has Mr. Anderson been treated in this case in the manner in which we pride ourselves in the United Kingdom that every person is treated before the law, and should expect to be so treated? And I believe the answer must be "no".
I will not go through the case because it has been done extensively by other noble Lords, but there are three matters in the conduct of the prosecution before, during and after the trial which to me at any rate are specially worrying. By now your Lordships are more than familiar with the evidence, but putting it in a few sentences, two teenage girls made allegations about Mr. Anderson—or rather his behaviour—to the effect that he made some sort of overtures to them of an indecent nature. It is right to point out that at the trial there was no corroboration of their evidence at all, and the whole case depended on the identification of the accused man by these two girls. Quite apart from the inherently unsatisfactory 954 nature of the case for the prosecution, the pre-trial conduct of the police, in retrospect, made a conviction even more unsafe.
Why do I say that? The two girls were placed together in a police car in circumstances in which they knew that the accused—the suspect—would come along and that they were expected to identify him. They were both together in the police car, and I suggest that the result is that any possible evidential value of that confrontation—because that is what it amounted to—would be minimal. Taking the evidence of the girls as a whole, I would say without hesitation that it would be quite unsafe to convict on their evidence. I will not weary your Lordships with the details, but the evidence was inconsistent as to details of the car, the appearance of the man who accosted them—one of them identified the shorthand writer in court as the man who had accosted them—and I think that if one had been conducting the case oneself, or putting oneself in the position of somebody in that court, one would have said that there was no case to answer and the matter could have been disposed of at the end of the case for the prosecution.
In the event Mr. Anderson was convicted, and we come to the second disturbing feature. There was no appeal on fact from the judge of first instance, sitting alone and without a jury. I am not going to criticise the sheriff; I have no reason to do so and it would be improper, but if the sheriff asked himself at the end of the case for the prosecution whether it was proved beyond reasonable doubt, it is difficult to see how he came to the conclusion which he undoubtedly reached. If I differ at all from the very erudite and powerful arguments of the noble Lord, Lord Foot, I should have said that the evidence as it was at the end of the case for the Crown would have rendered a conviction unjustifiable, even before the conclusions of Lord Devlin, for the reasons which I have given.
At any rate no appeal lies, nor did it lie, against the facts. A restricted appeal lies in matters of law, but the sheriff refused to allow 10 pages of proposed adjustments to go forward as part of the stated case; he even refused to grant counsel a hearing to argue the matter 955 and this, let us remember, was in a case of the greatest importance, bearing in mind the character of the accused and the nature of the evidence. It is fair to say—and these are hard words but I think they should be said—that the sheriff acted according to the wishes of the prosecution, and it is difficult to see that the Crown was acting in the manner that it should, ensuring that justice was done and that the case was being conducted on the basis of prosecution and not persecution. It is difficult to reach the conclusion that the Crown was acting fairly.
Not altogether surprisingly—and it goes without saying—the appeal was dismissed, if only because the court was not properly seized of the facts, and no doubt the argument could not be mounted in an effective way. I am not concerned with debating the merits of the defence case; what I am concerned with is the fact that to my way of thinking justice must be seen to be done and appear to be done.
I can put this in another way—and I am coming now to the end of my remarks and the question of the prerogative. If it is shown that a subject of the Crown has been tried and convicted and a miscarriage of justice has taken place, and that this miscarriage has taken place in very large part due to acts of those whose duty it was to ensure that the trial was fair, and where the legal premises in at least two aspects have been shown to be out of date and unjust and unfair, does it then lie in the mouths of those who speak on behalf of the Crown—in other words, the noble Lord, Lord Kirkhill—to claim that the Crown cannot now remedy the injustice which has been perpetrated in the name of the Crown in the first place? I do not believe that it is so. If it were, the safety net, as I call it, which we believe to exist in the use of the Royal Prerogative would have a gaping hole in it.
Since the case was heard not one but two official bodies have concluded that the bases upon which the conviction was obtained, and the basis upon which the appeal went forward, are condemned, and we are now informed that the Secretary of State does not feel empowered to act. As has been said by other noble Lords, so often in the annals of our criminal history the Executive is extraordinarily reluctant to admit mistakes in criminal proceedings, 956 and also reluctant to put matters right, to right a wrong. If the Secretary of State acted in the way that this Motion of my noble friend suggests, could I suggest to the noble Lord, Lord Kirkhill, that it would not be a confession of weakness, it would not even be a precedent which could be used by others who are aggrieved by virtue of the handling or mishandling of their own cases. I urge the noble Lord even at this late stage to accept my noble friend's Motion and agree to it, so that the matter can go forward from this House as an expression of concern at what has happened, and determination that if possible the wrong should be righted.
If the noble Lord, Lord Kirkhill, does not accede to the Motion, I do not at present know what my noble friend will do about it. It is not a Party matter, and certainly it is not a matter of whipping. Can I just say this. If my noble friend was minded to divide the House I should follow him into the Lobby, and I should do it on this basis: that those of us who are privileged to have a say in the conduct of affairs in this country cannot rest easy in our consciences if we allow a manifest injustice of this nature to pass unchallenged.
§ 8.44 p.m.
§ Lord KIRKHILL
My Lords, if I have the leave of your Lordships, I might respond briefly to a number of points which have arisen. Perhaps I might just say at the outset of my remarks that those of your Lordships who sat, as I certainly did, through many hours of debate on the Scotland Bill will at least accord me this, that I attempt to respond to the relevant points made with as good grace as I can and with as much judgment as I can bring to bear on issues as they arise. But in this particular situation I am, of course, sensitive to realities. I am sensitive to Mr. Anderson's personal position. I am sensitive to the position of my Secretary of State, and I must keep that very clearly before me.
However, there were one or two direct points put to me. The noble Lord, Lord Foot, asked me to which court I referred in my earlier remarks, and I should say that I was referring to the court of first instance which heard the evidence. My noble friend, Lord Gardiner, asked of me what is wrong 957 with the Justice report. The Justice report is a careful analysis of the case which brings out, as happens in many criminal cases, arguments that the verdict might be wrong. The question, however, is whether, taking account of the other information, such as the two admissions, this shows such substantial grounds for believing that a miscarriage of justice has occurred as to justify the exercise of the Royal Prerogative. That must be a matter of judgment for my right honourable friend the Secretary of State for Scotland, and to that extent he must be seen to differ from the Justice members.
My noble friend, Lord Gardiner, asked of me how there were, as he saw it, differences between my interpretation of Royal Prerogative and that of my right honourable friend the Secretary of State for Scotland. I think your Lordships might agree that in the speech I made earlier I made it clear that there was no difference between the criteria I set out in my speech in 1976 and the Secretary of State's in the case of Mr. Patrick Meehan. It is no new statement of law or limitation on the exercise of the Prerogative to say that factors of substance must be present before the Secretary of State can be justified in intervening in decisions of courts of law.
The noble Lord, Lord Drumalbyn, and my noble friend Lord Gardiner asked about the Crown's objections to proposed adjustments of the stated case, and there has been some suggestion made that I, as a representative of the Government, must share some responsibility for the objections by the Crown to the proposed amendments to the stated case. There has been some suggestion that these objections were the result of some policy decision. I can assure your Lordships' and I believe your Lordships will accept this assurance, that the Crown, as prosecutor—that is, the Lord Advocate and his staff—are entirely independent of the Government in their actions. The Crown's decision to object was not an attempt improperly to influence the court, which could accept or reject the amendments as it chose.
If I could turn my attention very briefly to the terms of Lord Drumalbyn's Motion, I must remind your Lordships that we are speaking here of a prerogative decision, 958 an action by Her Majesty on the recommendation of one of her Principal Secretaries of State. This has always been accepted as a personal decision to be taken by the Secretary of State alone, and, while there is no objection to such cases being debated in your Lordships' House, it is reasonable for me to remind your Lordships that our discussions must be taken against just such a background. The Secretary of State makes his recommendation entirely upon his personal responsibility, and it is improper, in my view, to intervene in that area of his entirely personal responsibility.
Were the Motion to be carried, if we go to a Division, then the responsibility still remains with the Secretary of State, and he must personally justify his decision. I must make it clear to your Lordships that he does not consider himself so justified. In this he is not acting on the advice of his officials; it is his personal decision based on his very careful examination of all the aspects of the case.
§ 8.50 p.m.
§ Lord DRUMALBYN
My Lords, first I should like to thank all noble Lords from all quarters of the House who have taken part in this debate. I should also like to acknowledge the care with which the noble Lord, Lord Kirkhill, has dealt with the matter even though, as he quite rightly said, he could not give me very much comfort.
I should like to deal with the matters which the noble Lord, Lord Kirkhill, has just raised. Of course, in tabling this Motion I recognised that the personal decision of the Secretary of State was involved and that was why I said, very unusually;That this House calls on the Secretary of State for Scotland to reconsider the case of Mr. D. C. Anderson, QC …".Normally Motions are tabled to call on Her Majesty's Government. The Motion was deliberately directed towards the Secretary of State for Scotland as, indeed, the House is surely entitled to do. It is right that the House should make its opinion quite clear to the Secretary of State for Scotland. None of us envies the Secretary of State for Scotland as regards the responsibilities that he has to exercise concerning the Royal Prerogative, but surely in the course of this debate enough 959 has been put forward for the Secretary of State for Scotland to reconsider the attitude that he has so far taken. That is the point.
The hour is late and I am sure that noble Lords will not wish me to speak at length. However, there is one matter which I should like to dispose of as a question of fact. It has repeatedly been said in the past that Mr. Anderson refused to attend an identification parade. I must put the record right on this matter, and I do so by reference to the evidence of Mrs. Armstrong, the policewoman who was present when the police sergeant was dealing with Mr. Anderson. The questions to which I shall refer were put in cross-examination. She was asked:Could you just describe to his Lordship in a little more detail what happened?She replied:Well, Sergeant Pringle was obtaining his name and address"—that is, Mr. Anderson's name and address—and he offered to give a photograph if this would do in place of the identification parade as he did not want to be involved in a public police office et cetera with the public".She was then asked:What happened after that? What did Sergeant Pringle say?She replied:Well, he agreed to accept the photograph".I think that it is fair to add that he did not agree to accept it in substitution for an identification parade. Two or three questions later she was asked:So, as a result of that, was the question of an identification parade postponed?"—not refused, but postponed. The witness replied:It was".Do not let us hear any more about the refusal of Mr. Anderson to attend an identification parade.
The noble Lord has so far signally failed to give any reason whatsoever for the Crown opposing the adjustments. That is surely the core of the case. That is what prevented the Appeal Court from 960 considering the matter in its entirety. Whatever the reason or reasons may be, the Secretary of State should decide in his own mind as between those reasons and the manifest failure of the system to provide a satisfactory examination of the evidence in this case.
We must bear in mind that whatever the reasons the Secretary of State may have they have never, at any stage, been tested in the courts. The noble Lord referred to the two admissions. They were never tested in any court. Therefore, the Secretary of State should either exercise the prerogative, as I think most speakers have advocated, or hold an inquiry so as to test the reason on which he was advised. As we have discussed this matter in such a non-political atmosphere tonight, and as I do not want to cloud the issue in any way, I think that I should point out that, of course, it was not the present Secretary of State or the previous Secretary of State who was involved. What is more, the noble Lord is quite right in saying that the Crown Office is independent in the action that it takes here. But what has to be justified if the Secretary of State still demurs from exercising the prerogative of mercy is the reason why the Crown Office opposed with what was called "blanket opposition"—and pretty wet blanket opposition—all the adjustments, not only in the first instance but when the case came on appeal, when they opposed the motion that it be referred back.
That is the core of the matter, and I believe that your Lordships ought to be given the opportunity to express your views. I am grateful for all the support that I have been given in this debate and I hope that we shall, as the noble Lord, Lord Shinwell, said see that human rights are observed in this case.
§ 8.57 p.m.
§ On Question, Whether the Motion shall be agreed to?
§ Their Lordships divided: Contents, 44; Not-Contents, 8.961
|Airedale, L.||Hampton, L.||Rathcreedan, L.|
|Baker, L.||Harrowby, E.||Ritchie-Calder, L.|
|Barrington, V.||Kimberley, E.||Segal, L.|
|Boyd-Carpenter, L.||Lindsey and Abingdon, E.||Shinwell, L.|
|Brockway, L.||Listowel, E.||Simon, V.|
|Cork and Orrery, E.||Lyell, L.||Strathclyde, L.|
|Craigavon, V.||McGregor of Durris, L.||Tweeddale, M.|
|Craigmyle, L.||Mackie of Benshie, L.||Vivian, L.|
|Davies of Leek, L.||MacLeod of Fuinary, L.||Wade, L.|
|Denham, L.||Mancroft, L.||Walston, L.|
|Drumalbyn, L. [Teller.]||Mansfield, E.||Ward of North Tyneside, B.|
|Elliot of Harwood, B.||Mottistone, L.||White, B.|
|Foot, L. [Teller.]||Mowbray and Stourton, L.||Winstanley, L.|
|Gainford, L.||O'Neill of the Maine, L.||Wynne-Jones, L.|
|Gardiner, L.||Rankeillour, L.|
|Elton, L. [Teller.]||Milford, L.||Trefgarne, L. [Teller.]|
|Glenkinglas, L.||Strabolgi, L.||Winterbottom, L.|
|Kirkhill, L.||Swinton, E.|
§ Resolved in the affirmative, and Motion agreed to accordingly.