Criminal Appeal Bill

HL Deb 08 June 1995 vol 564 cc1470-516

3.52 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Ackner moved Amendment No. 1:

Before Clause 1, insert the following new clause:

("Appeal against sentencing recommendation of trial judge in

murder cases

. An appeal shall lie to the Court of Appeal (Criminal Division) against a recommendation by the trial judge to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 as to the minimum period which should elapse before the release on licence of a person convicted of murder.").

The noble and learned Lord said: In one of the briefing papers, I think from Justice, this amendment was commended and correctly described as a modest but useful step towards justice. It is modest because, much as I would like to, it in no way reduces the Home Secretary's power to set the length of time a murderer should remain in prison. It is useful because it cures certain anomalies which exist in relation to life sentences.

As the Committee knows, there are two types of life sentence. There is the mandatory or automatic life sentence which arises when someone is convicted of murder. It does not matter whether it is a murder involving a mercy killing, where the degree of culpability may be looked on as being somewhat small; it does not matter whether it is a case where the murder has been committed as the result of the use of excessive self-defence; it does not matter whether the murderer had no intention to kill but, for instance, in a brawl in a pub used a bottle as a weapon, and his victim was killed.

The other type of life sentence is the discretionary life sentence. That is imposed by a judge in cases where imprisonment for life is an option and where the particular offence, be it manslaughter, be it attempted murder, be it rape or arson, shows characteristics of such seriousness and the risk so great to the safety of the public that an indeterminate sentence has to be imposed.

The Committee will have noted that in the examples I gave of murder, and of the cases where the discretionary life sentence is imposed, one can see cases for discretionary life sentences which are much more serious than those which attract mandatory life sentences, both on the facts and on the risk to the public to which those offenders give rise.

Section 34 of the Criminal Justice Act 1991 throws up the first of the differences which arise. It relates to discretionary life sentences, and it empowers the judge, on imposing a discretionary life sentence, to state what he considers to be "the relevant period". That is the period which he considers appropriate for punishment and deterrence, and does not involve any aspect of safety for the public.

That part of the judge's decision is part of his order. It is not treated as a mere recommendation, and, as a result, it is open to appeal. Because it is open to appeal, counsel on behalf of the prisoner has the opportunity to address mitigation to the trial judge, and because it is open to appeal, he has a similar opportunity before the Court of Appeal (Criminal Division).

The practice direction which is relevant has indicated that judges, except in the most exceptional circumstances, should avail themselves of Section 34, and as a result there has ceased to be what many judges find unpalatable: the need for confidential communication between the trial judge, and upwards through the Lord Chief Justice to the Home Secretary, indicating what the trial judge and the Chief Justice think is appropriate for this "relevant period" or what has been previously known as the tariff or the penal part of the sentence.

When one comes to the mandatory life sentence, Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 provides: On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence". That subsection was provided in order to indicate that there was the opportunity to ensure that the life sentences which would thereafter be passed in the case of murders would be of a sufficient length to satisfy the public that the offence was being treated with the appropriate seriousness.

Before the 1965 Act, life sentences were of an unusually short duration—two or three years at times, with an overall average of about eight years. Such is the provision in the 1965 Act that last April—a couple of months ago—the case of the Queen v. Leaney was heard by the Court of Appeal (Criminal Division). It involved a stabbing by a young man of another young man who was unarmed. The trial judge considered that there was an element of racism in the offence and thought that the defendant was a particular danger to the public. He therefore made a recommendation under Section 1(2) of the 1965 Act that he serve not fewer than 20 years.

An appeal was brought against that recommendation, with the leave of the Court of Appeal, and the Court of Appeal, having considered the matter carefully on the facts, was not convinced that there was a racist element in it, and decided that the recommendation provided an excessive period. Following three previous decisions of the Court of Appeal (Criminal Division) to the same effect, with reluctance it also concluded that the recommendation amounted merely to advice—it was not part of the sentence or order—and accordingly there was no appeal from it.

The court, which was presided over by my noble and learned friend the Lord Chief Justice—whom I am delighted to see here today—drew attention to the anomalies that existed (I have drawn attention to them today): no appeal where the life sentence is mandatory; an appeal where it is discretionary. The court considered that Parliament ought to have regard to that as a matter of urgency.

The court indicated that, in its view, the same openness, the same criteria, should apply to both forms of life sentence. I understand from my noble and learned friend the Lord Chief Justice that if this amendment is accepted, there will be a practice direction somewhat analogous to that given in relation to Section 34 of the 1991 Act. Therefore, except in special cases, the judges will give their recommendation, having heard whatever counsel wishes to say in mitigation. That recommendation will be the subject matter of an appeal, if needs be, and the Court of Appeal will lay down the appropriate guidelines, as it has done in regard to discretionary sentences.

That will mean that unnecessary anomalies are eliminated. It will also mean that in the case of mandatory life sentences it will no longer be necessary for the confidential procedure to be gone through, as it is at the moment to the distaste of many members of the judiciary. Confidential letters are written via and upwards through the Lord Chief Justice to the Home Secretary making confidential reports with regard to the case and making a recommendation. However, as a result of the recent decision of this House in the case of Doody, the gist of the recommendation must now be communicated to the prisoner.

I should point out to the Committee that leave to appeal was applied for by Leaney and refused by the Court of Appeal (Criminal Division). As I was finishing lunch today I learnt that an application for leave to appeal has been made by Leaney to the Judicial Committee. I have checked and confirmed that no possible question of sub judice rule arises in that situation. That is referred to specifically on page 74 of the Companion to the Standing Orders. However, it means that your Lordships will not have the advantage of hearing the views of sitting Law Lords because one does not yet know the fate of the application. I hope that those of us who are not involved in the potential obligation to decide anything in connection with Leaney will be addressing the Committee on this matter.

As I indicated at the outset, this is a modest amendment designed to cure an unjustified anomaly which has arisen historically. I beg to move.

Lord Hailsham of Saint Marylebone

I hope that my noble friend will give favourable consideration to the amendment. I can say so because I am not a sitting Law Lord.

4 p.m.

Lord Roskill

I venture to intervene because it so happens that almost 30 years ago it fell to me to make the first recommendation under the 1965 Act in a case which the noble Lord, Lord Hutchinson of Lullington, may well remember because he was defending counsel. I shall not mention the name of the case because I know that the man has been released and so far as I know he is still alive. I recall discussing with my noble and learned friend Lord Lane the question of when he should be released and what recommendation should be made to the Home Secretary.

There is a great deal of historical background to the 1965 provision. It was introduced—as I am sure the noble Lord, Lord Callaghan of Cardiff, who became Home Secretary at that time, will recall—because the then Lord Chief Justice, Lord Parker, was extremely apprehensive that with, happily, the final abolition of capital punishment the question would arise of keeping in prison for a very long time those who would otherwise have been executed. Lord Parker was persuaded largely by that formidable Lady, the late Baroness Wootton, to support the campaign for the final abolition of capital punishment. But when the provision was put in the 1965 Act the parole board had not been set up. Lord Parker's fear was that there would be a danger of really dangerous criminals being released very early. My noble and learned friend Lord Ackner said that the average was about eight years. My recollection is that in the case of capital murders the period was about 10 years, but I stand to be corrected by the noble Lord, Lord Allen of Abbeydale, if he is here.

The point is that at that time, in the cases of those people who were released after an average of 10 years there were mitigating circumstances and for that reason they had been reprieved. Obviously, that 10-year period was going to be quite insufficient for the really dangerous long-term criminals. The noble Lord, Lord Callaghan, may recall that in 1968 when he was Home Secretary he asked me to go to the United States to see how the Americans dealt with the problem. I had the most interesting experience because they were facing up to the problem of keeping people in prison for years longer than anyone had ever done. The noble Lord was kind enough to write to me afterwards about my report.

That is the history of the matter, but the whole position has changed radically. As my noble and learned friend Lord Ackner said, as a result of a series of anomalies, partly by judicial decision and partly by legislation, which has not taken everything into account, we have reached a position that is logically totally indefensible. I hope that in due course, when the matter comes back and the outstanding petition has been dealt with one way or the other, the Government will give strong and favourable consideration to it. It will involve reversing the decision of the Court of Appeal in respect of the case that I tried and in which the noble Lord, Lord Hutchinson, appeared. On appeal from me, the Court of Appeal (Criminal Division) stated that there was no right of appeal. I have always regretted that decision because no one is infallible. Human error being what it is everywhere, and in particular in court, it is important that there should be an opportunity of correcting that which may have gone wrong.

I hope that I have not spoken for too long but I wished to give the historical background to the matter. There is a hopeless anomaly which ought to be corrected if not by judicial decision at least by legislation.

Lord Renton

I venture to disagree with the noble and learned Lord, Lord Ackner. I am happy to say that it is very rare for me to do so. I hope that I shall not be presuming too much if I say that we should all bear in mind the fact that there is a clear division of function between the courts and judges on the one hand and the Home Secretary on the other. It is for the learned judges to apply the law and to make decisions. If there is a question of appeal from their decision, that goes to the Court of Appeal. On the other hand, it is for the Home Secretary, in respect of all people in prison but especially those who are subject to life sentences, to consider whether the Royal prerogative of mercy should be exercised and whether the various opportunities given to him by statute to consider cases of people who are undergoing sentences of any length should be exercised. Of course, the Parole Board, quite separate from the judiciary, has been given its own special function somewhere between the two—the courts and the Home Secretary.

When the Home Secretary exercises his discretion, he is entitled to receive advice from the prison authorities, medical people and from his own officials who, from my recollection, always give sound advice. In the particular case referred to by the noble and learned Lord, he is entitled to consider advice—and it is only advice—given by a learned judge after sentence has been pronounced.

Perhaps I may say with deep respect that it seems to me to be misguided and overzealous that we should pick out that particular advice which the Home Secretary receives and make it subject to all the tremendous efforts that are made when a case goes to the Court of Appeal and ignore the other pieces of advice on which the Home Secretary, by well-established practice, is entitled to rely and does rely. If that were a decision of the judge, I should agree with the noble and learned Lord, Lord Ackner; but it is not. It is merely advice and one of several pieces of advice which the Home Secretary has to consider.

Lord Ackner

Before the noble Lord sits down, he was kind enough to say that we rarely disagree, and I wonder whether this disagreement does not arise out of a misunderstanding.

The noble Lord is anxious that the Home Secretary should receive the best advice possible. This provision simply seeks to ensure that he does receive the best advice because, if the trial judge gets it wrong, that is not the best but the worst advice. If the trial judge makes an error, it goes to the Court of Appeal and the Court of Appeal says that the right advice is X, does not the noble Lord agree that that removes the prospect of the Home Secretary being misled as to what is the appropriate judicial advice?

Lord Renton

With deep respect to the noble and learned Lord, I do not believe that that destroys my argument, in spite of the views expressed by my noble and learned friend Lord Hailsham for whom we all have the deepest respect. In reality, if the advice given by a judge is wrong, that will be manifestly clear in nearly every case. I really do think that on a matter which is not a matter of decision but a matter of advice, to invoke the whole process of going to the Court of Appeal is—I hope I am not using the wrong word—overzealous.

4.15 p.m.

Lord Campbell of Alloway

If the purpose of this amendment were to ensure that the recommendation of the trial judge, under Section 1(2) of the 1965 Act, should always be made in open court, such a purpose warrants the unqualified support of all Members of this Committee.

Reference has been made to the anomaly between mandatory and discretionary life sentences. Before turning to that, as to the purpose to which I have, just referred, not only has it the merit of fairness and reasonableness, but it will also relieve the tensions aroused by a sense of frustration and injustice which has led to serious disturbances in our prisons. But is it the effect of the amendment that the trial judge should cease to communicate with the Secretary of State by private correspondence? I hope so. Is the effect of this amendment that the practice of the Lord Chief Justice communicating with the Secretary of State will continue or will it cease? If one erects an appellate structure to avoid the anomaly, one may well ask, with the greatest respect, whether the communication system between the Lord Chief Justice and the Secretary of State could not become otiose.

As to removing the anomaly, as my noble friend Lord Renton has said, there are obviously two views about that. In one sense, although the point of view advanced by my noble friend Lord Renton appears to be anomalous, on detailed examination it is not anomalous and should be preserved.

Whatever may be said as to the merits of that, perhaps I may respectfully suggest that the introduction of this appellate structure requires a measure of clarification as to the position of the communication with the Lord Chief Justice and also the secret communication by the trial judge at the request of the Home Secretary because, with respect, I should have thought that that secret method of communication should have ceased years ago.

Members of the Committee may be interested to know how this recommendation under Section 1(2) of the 1965 Act arose. It was part and parcel of a compromise to enable the Bill to pass because it was obvious that if the mandatory death sentence had to be replaced by the mandatory life sentence, no one, save in very rare and wholly exceptional cases, was going to serve a mandatory life sentence. Life did not mean life. The noble and learned Lord, Lord Ackner, has explained that it was designed to ensure that a sufficiently long sentence would be imposed.

That compromise was agreed between Lord Gardiner and Lord Dilhorne to enable that Bill to pass. But it was not particularly acceptable to either of them and it is certainly not understood why, as part of that agreement, that system of secret communication should have been necessary. But perhaps 30 years ago, a more overt system of dealing with the matter in open court had not been considered.

In conclusion, I ask the Minister whether she accepts that a recommendation by the trial judge should always be a judicial act performed in open court and that the system of the private communication by letter should cease; and, if so, whether the Government would be prepared to introduce or not to oppose an amendment to such effect.

In view of the disagreement as to whether one should remove the anomaly, perhaps I may ask the Minister whether she will explain the Government's attitude to the continuation of that current practice of communication with the Lord Chief Justice. Further, what is the attitude of the Government to the proposed appellate structure under the amendment, bearing in mind the argument as to the anomaly? In the light of what my noble friend the Minister may say, it may well be that one would wish to have time to consider the amendment further rather than deal with it today.

Baroness Mallalieu

As a practising member of the criminal Bar, I wish wholeheartedly to support the amendment moved by the noble and learned Lord, Lord Ackner. My only criticism of it is that it is a small step which does not go far enough. Until very recently a defendant convicted of murder, as the noble and learned Lord said, and sentenced, therefore, to a mandatory life sentence accordingly, had no knowledge of what, if any, communication the trial judge made to the Home Secretary about how long he would have to serve, except in the very few cases—usually those of the utmost gravity—where a recommendation for a minimum term to be served was made at the trial in open court at the time of sentence.

It is also right to say that for many years counsel were largely ignorant even of the existence of the confidential report sent by the trial judge in other cases; and only very recently, as the noble and learned Lord outlined, have the accused and his legal advisers been entitled to know the contents of the report, or of any additional recommendation made by the Lord Chief Justice, or, indeed, of the tariff itself ultimately set by the Home Secretary. At present there is no right of appeal against the recommendations of the trial judge, publicly or privately, of the Lord Chief Justice or of the Home Secretary.

The present position gives rise to very considerable feelings of injustice among those defendants at the receiving end. The decisions appear to be taken behind closed doors, with no opportunity to challenge, correct errors or persuade in any way. Perhaps I may give the Committee one brief personal and recent example. It relates to a middle-aged and totally respectable man convicted of the murder, committed in a rage, of a drug dealer who had been supplying drugs to one of his sons. He had gone to the dealer's house and used a shotgun. At the initial trial the judge directed the jury that they could consider his defence of provocation only in the context of what had happened between the two men after he had arrived, armed, at the drug dealer's home. In those circumstances, scarcely surprisingly, the jury rejected provocation and convicted the man of murder. He was sentenced to a mandatory life sentence of imprisonment. No recommendation was given at the trial in open court. Subsequently, the trial judge privately recommended to the Home Secretary a minimum sentence of 12 years. The Lord Chief Justice raised that recommendation to one of 14 years, which was accepted by the Home Secretary.

That man's sense of injustice about the direction of the trial judge was great, but at least he was able to appeal. In the event, the Court of Appeal ruled that there had been a misdirection on the law and ordered a re-trial, at which he was convicted of manslaughter, not murder, and sentenced to eight years' imprisonment. Therefore, he is likely to serve substantially less time. However, he felt a sense of injustice and frustration at being unable to appeal against the private recommendation of either the trial judge or of the Lord Chief Justice. He also felt that the decision of the Lord Chief Justice and the tariff that he set were bound to some extent to have been based on the trial judge's view. His sense of injustice in that respect was, if anything, even greater.

The amendment does not deal with the provision of appeals in relation to other stages in the tariff process. For that reason, I say that it does not go far enough. However, it is a modest step in the right direction and one which I hope the Minister will, on reflection, feel that the Government can accept.

Baroness Elles

Before my noble friend the Minister responds, perhaps I may contribute modestly and humbly to the debate. I listened carefully to the remarks made by noble and learned Lords. It seems to me that the real question is that of an anomaly. I am not sure that having an anomalous situation is sufficient ground for wishing to change existing procedure. On the other hand, the remarks made by the noble Baroness, Lady Mallalieu, and the points raised by my noble friend Lord Campbell of Alloway drew attention to the fact that there are certain deficiencies in the present procedure which I believe should be remedied, especially as regards private and confidential reporting coming from the judge, who makes a recommendation.

I should like to suggest to my noble friend the Minister that she should perhaps take the matter away, study what has been said, seriously consider the amendment proposed by the noble and learned Lord, Lord Ackner, and try to find a way to improve the procedure without actually changing the process of going to the Court of Appeal merely on the grounds of an anomaly. In my view, that is not a strong enough ground for changing the procedure. However, clearly something must be done; there is something wrong with the procedure. Nevertheless, I do not believe that the amendment goes to the root of the problem.

4.30 p.m.

Lord Taylor of Gosforth

The amendment has my full support. Of course, as has been said—I do not wish to detail again the procedures—in all life sentence cases the tariff, or penal element, has to be set; that is the period which the prisoner must serve in order simply to satisfy the requirements of retribution and deterrence. Until that period is served, the prisoner is not eligible for release on licence. Whether he should be held longer because he presents a danger to the public is another matter.

However, we have this not merely anomalous and illogical but unjust distinction between the two different classes of life sentence. When a discretionary life sentence is imposed, it is the responsibility of the trial judge to set the penal element of the sentence as part of his order. That tariff is subject to appeal. Thus, the process of establishing that minimum period of detention is conducted in open court and is subject to appeal in open court.

By contrast, the regime in murder cases is quite different. When the mandatory life sentence is imposed, it is the ultimate responsibility of the Home Secretary to set the penal element of the sentence. In exercising that responsibility the Home Secretary has the assistance of recommendations from both the trial judge and from the Lord Chief Justice. That advice has conventionally been given in writing and behind the scenes rather than openly. Since the decision of the Appellate Committee of this place in the case of Doody, that advice now has to be disclosed to the prisoner before the Home Secretary makes his decision so that representations can be made upon it, but it is not subject to appeal.

There are least two reasons why the present system is unsatisfactory. First, the trial judge usually does not have the benefit of hearing argument on the penal element. Therefore, on the crucial issue of how long the prisoner should be detained the judge receives no representations on his behalf. However, its most important flaw is that the process is secretive. Justice in our system is administered in public. It is fundamental that proceedings which lead to conviction and sentence should, wherever practicable, be conducted openly and be subject to appeal. The current procedure involves a quite unnecessary and counter-productive deception on the public.

As the noble Lord, Lord Monson, pointed out in a debate in this Chamber on 27th April initiated by the noble Earl, Lord Longford, the public are confused by the difference between what the noble Lord termed gross and net sentences. Moreover, they hear that a prisoner has been sentenced to life imprisonment but know that in the majority of cases "life" will mean something between 10 and 15 years. Members of the public do not know where on the spectrum any particular case has been held to lie unless the prisoner or his legal representative leaks the judge's confidential advice to the media. This has happened in a number of recent cases and does little, in my view, to bolster public confidence. Happily, Parliament has already provided nine-tenths of a better procedure.

Under Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, to which reference has been made, a trial judge may, in a case of murder, make a recommendation in open court as to the minimum period which should be served before the question of release on licence arises. This power has tended to be used only in cases of exceptional wickedness when long terms have been recommended. It may perhaps have been equally appropriate to be used in cases where the small degree of culpability, comparatively speaking, would justify much less than the normal sentence, but it has not been so used, and indeed it is rarely used.

Moreover, such a recommendation, even under the statute when it is done in open court, is not appealable, as my noble and learned friend Lord Ackner has pointed out, and as we ruled recently in the case of Leaney. The amendment before the Committee would correct this anomaly by providing an avenue of appeal, as is the case with, for example, a recommendation for deportation. If the amendment is carried, I would propose to invite judges to regard the procedure under the 1965 Act as the usual course to be followed in all murder cases. Thus the trial judge would make his recommendation in open court having heard representations. If not appealed, that recommendation would go unchanged and unqualified to the Home Secretary. If it were appealed, the Court of Appeal would review it and its views would go to the Home Secretary. There would therefore be only one regime and it would be open to public scrutiny.

I would like particularly to comment on the point raised by my noble friend Lord Renton with whom I am afraid I do not find myself in agreement. He suggests that there is an important distinction between a judge who is making a decision and a judge who is merely making a recommendation. There is, of course, a distinction. That is clear. But it does not go to the merit of this amendment because at present the recommendation for deportation which a judge makes is only a recommendation. It is not binding on the Home Secretary. Yet there is within the statute a right of appeal in respect of that recommendation. How much more appropriate it would be if the recommendation related to a long period of years which the defendant may have to serve.

I would suggest that rather than the Lord Chief Justice single-handed having his input following the trial judge's secret recommendation, if there is to be a review of the recommendation of a trial judge the trial judge should make it in open court and it should be three judges, presided over, if you please, by the Lord Chief Justice, who should have the opportunity to review it. It seems to me that that would not only be more open but would give a better chance of achieving a fair result. Accordingly I would recommend that we follow the amendment proposed by my noble and learned friend Lord Ackner. The Home Secretary's role in setting the final tariff in murder cases would—I emphasise the point—be entirely unaffected by the amendment we are considering. He would be free, as he is now, either to accept or not accept the judicial recommendation.

I have raised the matter already with the Home Secretary who was not, I am bound to say, enthusiastic about it, even though, as I have said, it would make no alteration to his power to decide the minimum period to be served by a mandatory life sentence prisoner. What it would do is to ensure greater transparency in the advice he receives from the judiciary when discharging his responsibility. It would remove the illogical distinction between the open regime of discretionary life sentences and the secretive regime of mandatory life sentences. I support the amendment.

Lord Renton

Before the noble and learned Lord sits down, I wonder whether he would be so good as to consider whether he is content that the other types of advice and recommendation—to use his word—which the Home Secretary receives, and must receive, before reaching some of these major decisions, should continue to be given confidentially to the Home Secretary, or whether they should be made public and be the subject of some kind of appeal to the Court of Appeal.

Lord Taylor of Gosforth

I do not know what recommendations my noble friend is referring to. I have already indicated that a recommendation for deportation which a judge makes is open to appeal. I would have thought that this form of recommendation should be treated no differently.

Lord Campbell of Alloway

May I ask the noble and learned Lord to explain something for clarification? Is the noble and learned Lord with me on the point or against me, that the private letter of the judge should cease?

Lord Taylor of Gosforth

Most certainly; I am sorry if that has not been made clear. I thought that I had sufficiently referred many times to openness rather than to a situation behind closed doors. It is precisely to get rid of the behind the scenes letter from, first of all, the trial judge and then, secondly, the Lord Chief Justice that this measure should in my submission be supported by the Committee.

Lord Campbell of Alloway

I am grateful to the noble and learned Lord. The views of the noble and learned Lord the Lord Chief Justice as to the type of practice directions that will be given will be recorded in Hansard. It is on that basis of implementation that this amendment is supported.

Lord Taylor of Gosforth

For complete clarification on this, I should point out that what I have in mind is a practice direction analogous to that which I gave following Section 34 of the 1991 Act. Section 34 of the 1991 Act is not mandatory upon the judges. A judge may bring Section 34 into effect if he chooses. I issued a practice direction to say that judges should, save in rare circumstances—perhaps where they thought that life should mean life—operate Section 34. The effect of that is that in every discretionary life sentence, save the exceptional ones, the trial judge in open court says what he considers is the minimum period that ought to be served.

As regards mandatory life sentences, what I propose is that if this amendment is carried I would issue a practice direction saying that judges should implement Section 1(2) of the 1965 Act in all cases of murder, save perhaps for some very exceptional reason. That would mean that a judge in every murder case would in open court invite comments as to the length of the period he should recommend from defending counsel. He should then make his recommendation. It should then be open to appeal. On appeal, it would be dealt with by three judges. If consistency is sought, I would be happy that it should be in a division over which I or my successors presided. In that way everything would be done openly and the behind the scenes letter would be done away with in the case of mandatory life sentences as it has been already in the case of discretionary life sentences.

Lord Meston

We on these Benches wish to support this amendment. With respect to the noble Lord, Lord Renton, it seems that so long as judges have the important function of making recommendations and having a discretion to make them publicly as an accompaniment to the mandatory life sentence, it surely must be correct that such recommendations can be scrutinised by the Court of Appeal. As the Committee has just heard, this amendment will surely help to ensure consistency, and it is to be hoped that it will encourage greater openness in the making of recommendations. What should reassure us that the amendment will work, and work well, is the promised practice direction which is to come, it is to be hoped, quite soon from the noble and learned Lord the Lord Chief Justice coupled with future guidance from the Court of Appeal which this amendment will facilitate.

Lord Lowry

I too should like briefly to support this amendment in view of all that has been said; but nonetheless, I hope, do so strongly. I recognise the logical reference to the existence of anomalies but perhaps I could remind the Committee that the real anomaly lies in a mandatory life sentence. The Committee will be relieved to hear that I do not propose to argue about that, merely to make a factual observation. It is a grim reflection but true that when sentence of death was the mandatory punishment for murder, that sentence was normally carried out unless there were exceptional circumstances. Since the mandatory life sentence was introduced, it has become abnormal for that sentence to be carried out. That is the background against which we have to consider the proposal.

I wish to make three points. First, when the judge makes his recommendation in open court, as I have always understood the law, and indeed took part in declaring it in another jurisdiction, there is no appeal from that recommendation. Under the proposal, if that recommendation is made in open court, as I think it should be, the accused hears it and can decide whether to appeal. If he does not appeal, that itself is a guide to the Home Secretary, because the accused is apparently content with the fairness of what the judge has said. If he does appeal, the Court of Appeal will hear submissions, will give its decision in open court and will give reasons. That, too, is of paramount assistance to the Home Secretary.

Contrast the present situation where, whether or not the judge makes an initial recommendation, he has the opportunity to advise the Home Secretary. If he has retired or has died, that opportunity will not exist. In any case, the Lord Chief Justice has another duty. Here I speak with some experience in another jurisdiction. The Lord Chief Justice has little alternative but to confirm the recommendation, if one has been given by the trial judge, or else, in exceptional cases, to apply a modifying influence if the judge seems to have gone to extremes in one direction or the other. All that is not of great assistance to the Home Secretary.

My second point is that the recommendation, though not part of the sentence, is very important whether made in open court or later, and should be treated as part of the administration of justice like the trial and sentence. For generations we have subscribed to the view that justice must not only be done but be seen to be done. That is one reason for favouring the amendment. Nowadays we are progressing even further to the view that administrative action must be open and be able to be questioned and examined. I understand that the Government subscribe to that view, and so does nearly everybody else.

Thirdly—and some Members of the Committee but not others may consider this important—the amendment does nothing to take away the power of the Home Secretary or interfere with his executive discretion. He still has the last word. If the amendment is accepted, that last word will be pronounced with the benefit of more information and much more useful advice.

I submit that the amendment has everything to be said in its favour and very little against.

4.45 p.m.

Baroness Blatch

I have listened with great interest to the exchange on this issue around the Chamber. The concern shown by your Lordships' House on all matters relating to the mandatory life sentence for murder is well known. However, it would be right for me to indicate at the outset that the Government cannot agree to this proposed new clause, despite the eloquent and learned arguments used in its support today.

This new clause would create a very considerable anomaly were there to be no change in existing judicial practice when it comes to making minimum recommendations in open court in murder cases. Thus, if it happened that the judge made a minimum recommendation under the terms of Section 1(2) of the Murder (Abolition of the Death Penalty) Act 1965, the convicted murderer would have a right of appeal. If the judge chose not to make such a recommendation in open court—which is currently the position in the vast majority of cases—then no such right of appeal would exist. But the judge would still make a recommendation to the Secretary of State in those cases about the period to be served to satisfy the requirements of retribution and deterrence.

It has been suggested during the course of this debate that that anomaly would not in fact arise. It has been indicated that the Lord Chief Justice would issue a practice direction to judges telling them to use their discretion to make a minimum recommendation in all but the most exceptional cases. However, I doubt that it is good legislative practice to pass provisions which depend on the issue of a practice direction to have any reasonable interpretation.

Even if judges made minimum recommendations in all cases, I cannot accept the argument that a right of appeal ought to exist against those minimum recommendations. Where there are avenues of appeal against sentence they are, almost without exception, in cases where the court has the final word on the subject: where the Executive has no power to substitute a different order.

When the noble and learned Lord, Lord Lane (the then Lord Chief Justice), confirmed that there was indeed a right of appeal against the "relevant part" specified by the trial judge in the case of a discretionary life sentence after the Criminal Justice Act 1991 came into effect, he referred to the acid test being that there: was no modification, revision or alternative which could be substituted for that by the Minister". That is clearly not the case with a minimum recommendation made by the trial judge in the case of a mandatory life sentence. It is only a recommendation. Parliament has not so far chosen to give the judiciary in the case of the mandatory life sentence anything more than this role in considering the penal element. As the noble and learned Lord, Lord Mustill, said during the course of the Doody judgment, Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed". Given that the minimum recommendation is just that—a recommendation—there is surely no case for building an appeal procedure about it. It would mean that that element in the tariff setting procedure alone would be subject to appeal. Not even that of the Lord Chief Justice would be subject to appeal.

It is worth remembering that the fact that a minimum recommendation is made in court is not the end of the matter as things stand. There may be no right of appeal against that recommendation, but there is opportunity for a further judicial view. I know that my right honourable friend the Home Secretary places considerable value on the views expressed as to tariff by the Lord Chief Justice under the current procedures. Where there are differences in the view taken by the trial judge and the Lord Chief Justice, the reasons for that disagreement are given very careful consideration.

Those supporting the proposed new clause have gone to some pains to stress that it would in no way detract from the role of the Secretary of State in tariff setting, or prevent the holder of his office from setting a tariff different from that determined by the Court of Appeal. Indeed, on the basis of this new clause, it would be impossible to suggest that that should be the case.

Successive Home Secretaries have stressed that the views of the judiciary on the requirements of retribution and deterrence are simply one factor—though a very important one—taken into consideration. Other factors, like the need to maintain public confidence in the system of justice are also relevant. That view is not simply one taken by Home Secretaries mindful of their responsibilities in this area, for the noble and learned Lord, Lord Mustill, confirmed during the course of the Doody judgment that, The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function". If tariff setting can go wider than normal judicial considerations—and it clearly can—then it seems to me that the intended advantage of Court of Appeal consideration of the judge's recommendation disappears. Rather than in any way improving transparency, it seems to me that it would be likely to cause considerable confusion.

The judge would make a minimum recommendation in court. That may well attract some publicity because, if the case has been reported on, the minimum recommendation will be recorded at the outcome of the trial. This will probably remain in the public consciousness. An appeal to the Court of Appeal which will take place some time later may or may not be reported. Even if it is reported, that would not be the end of the case. The Lord Chief Justice would still be invited to give a view. And the decision on tariff would still be made by Ministers. I am not sure that this would be readily understood by the wider public.

I do not suggest that the current procedures surrounding the setting of tariffs should remain immutable. That was the point made by my noble friend Lady Elles. A number of improvements have been made in recent years in terms of the disclosure of information to convicted murderers about tariff considerations. As noble Lords are aware, the prisoners are now informed of the recommendations as to the tariff period made by both the trial judge and the Lord Chief Justice; those serving a mandatory life sentence are invited to make representations on those recommendations; and once a decision has been taken by Ministers, they are told what their tariff is and they are given reasons for any departure from the judicial advice.

There may, however, be a case for greater transparency within those procedures where the general public is concerned. I have noted all that has been said on that aspect. In particular, I know that a committee in another place has been considering, among other things, whether there might be a case for recommending to my right honourable friend the Home Secretary that when tariffs have been set, they are made public as a matter of routine. My right honourable friend has indicated that he can see that there might well be arguments for doing so. At this stage we do not know what the Committee will recommend—but I know that the case for any changes in this area will be looked at very carefully. Therefore I can give my noble friend that assurance.

My noble friend Lord Campbell of Alloway asked whether minimum recommendations should be made in all cases. The Government believe that that should remain a matter for the judge's discretion. But we have heard from the noble and learned Lord the Lord Chief Justice that he would give pretty firm guidance to all judges that they should make a decision in open court. Nevertheless, it remains in law a discretion for the judge.

My noble friend Lord Campbell of Alloway and others referred to the role of the Lord Chief Justice if the amendment were passed. The Home Secretary would still want the views of the Lord Chief Justice. There would not, after all, be appeals in every case in those areas where a judge used his discretion not to make a recommendation in open court. The Home Secretary would want at least two judicial views in every case.

With regard to the Lord Chief Justice's further point, I accept that there is a right of appeal against a recommendation for deportation where the court does not have the final say in the matter. However, a successful appeal against a recommendation for deportation leads to the quashing of the recommendation. If it is quashed, there is nothing for the Executive to consider in due course. That is rather different from the position regarding the recommendation for a minimum period which can be made in the case of the mandatory life sentence.

The strong opposition to the mandatory life sentence, and to the role of the Executive in it, expressed by many in this House, and over many months—indeed, I suspect over many years—as I said at the outset, is well known. I believe that it is concern about the system of mandatory life sentence which underpins the amendment. I well understand that the limitations of the amendment have more to do with what is permitted within the confines of this specific piece of legislation than anything else.

This new clause is ostensibly about the fairly minor, though quite complex, issue of a right of appeal against the minimum recommendation made by a judge in open court. However, I do not believe that the wider implications of the new clause for the mandatory life sentence and its operation have escaped your Lordships.

If noble Lords wish to argue for changes to the mandatory life sentence, or for its abolition, that is their right. But I do not believe that the Bill, which has a very important and rather different purpose, is the proper place for such arguments to be aired.

Nor, if noble Lords wish to bring about changes to the operation of the mandatory life sentence, is this amendment the best way to do so. The new clause would introduce more anomalies rather than addressing the anomalies which some have claimed currently exist. I hope that the Committee will not take the decision—whatever its feelings about the system—to vote in favour of such an unsatisfactory change to the law.

I urge the Committee not to attempt to legislate for an appeal which would involve only one part of the tariff setting process. That point was made very well by my noble friend Lord Renton. It is just a part of the process; indeed, it is the early part of the process. It precedes the views of the Lord Chief Justice; it precedes the views of the officials in the department; and it precedes the psychiatric reports, the medical information and indeed the prison reports, too. There may be a case for wider transparency. As I said to the House, I have noted that point carefully. But I urge the House to accept that the issue should be considered as a whole rather than legislated on piecemeal. For all those reasons, I hope that this clause will not be pressed tonight.

Lord Ackner

I stated at the outset that the amendment was designed to do away with some of the anomalies which exist between the discretionary life sentence and the mandatory life sentence. I am bound to say that the Minister has not really addressed her mind to that issue. Section 34 of the 1991 Act has almost entirely escaped her observations. Section 34 of the 1991 Act gives the judge the right in open court to specify the tariff; and when he does so there is a right of appeal. In order to ensure that it became the practice of judges in discretionary life sentence cases to indicate what the tariff was, except in exceptional circumstances, my noble and learned friend the Lord Chief Justice issued a practice direction that judges should use Section 34. I have not heard any criticism from the Government with regard to that practice direction; and I cannot see why, if the amendment is allowed, an analogous practice direction requiring judges, except in exceptional circumstances, to make the minimum recommendation in all murder cases is open to any criticism. It is a complete analogy. That is where the anomaly exists: that cannot as yet be done.

In my respectful submission, the noble Baroness overlooks this point. On the one hand, she says that the Home Secretary takes very seriously—it is a very important element in his thinking—what the judicial advice is as to the minimum period. But she rejects the opportunity of that advice being the best advice that can be obtained—not the advice merely of the trial judge, but, if he has got it wrong, the advice of the Court of Appeal (Criminal Division). It is difficult to follow on what basis the opportunity to have that advice is rejected.

The noble Baroness says—I think that it is complete misunderstanding on her part as to what has been suggested—that the view of the Lord Chief Justice as at present will always be wanted. But that overlooks the fact that the Lord Chief Justice is presiding in the Court of Appeal (Criminal Division) in the cases where there are appeals from the trial judge's recommendation. The Home Secretary not only has the benefit of his advice as a result of the decision of the Court of Appeal (Criminal Division) but the advice of a Lord Chief Justice who has had the advantage of sitting in a Court of Appeal and—I stress this—having the case argued in front of him. At present, he makes the decision perhaps after consultation with the trial judge, with no argument, and without the assistance of members of the Court of Appeal. I do not follow why the amendment should in any way be rejected. I give way to the noble Baroness.

Baroness Blatch

I am most grateful to the noble and learned Lord for allowing me to intervene at this point. It is true that Parliament has taken the view supported by my right honourable friend the Home Secretary that there should be a distinction between murder and other crimes which are subject to life sentences. That is the point at issue. There is not only a distinction but a distinct process through which cases have to go and it was that to which I spoke. It is for the Committee to address the issue that those guilty of murder should be treated under the same system as those treated under the discretionary system, but that is not the case. The amendment simply interferes with that distinct process for the category of murder as opposed to other crimes which are subject to life sentences.

5 p.m.

Lord Ackner

With the greatest respect, the distinction between the two sentences is that in the discretionary life sentence the Home Secretary has no entitlement at all to determine the period that the prisoner spends in prison. It is determined by the trial judge and subsequently by the Parole Board in relation to what remains after the tariff has been settled—namely, that part that is necessary for the protection of society.

In the mandatory life sentence, the Home Secretary has the ultimate discretion as to when the prisoner should be released. That is the distinction and no interference of any kind is being made in that distinction. What is being provided is, no doubt in many cases, better quality advice from the judiciary as to what the minimum period should be, as a result of an appellate process which is open and capable of being argued. The Home Secretary remains fully entitled to ignore that advice. The impression I receive is that the Home Secretary is deeply concerned that he will be criticised the more for disregarding the advice because that advice will have been given in open court by the Court of Appeal after argument. However, the present process is a secretive one with no argument, no appeal and the prisoner himself only entitled to the gist of what has gone on. That ensures that the public is insulated from the true situation. Therefore, the Home Secretary can—as he does—alter essentially upwards the judicial tariff without being open to public criticism.

I gather from the resistance and the way in which the Government have presented their resistance that the Home Secretary is anxious to remove himself from the criticism that might occur were he flagrantly to ignore the advice of the Court of Appeal (Criminal Division) as to the justified minimum period.

That is so unsatisfactory a way of dealing with the amendment that I would have been minded to divide the Committee but for a simple matter. Members of the Committee have had the advantage, for what it is worth, of retired Law Lords giving their views and the great advantage of the views of the present Lord Chief Justice. But the Committee has been denied the views of the sitting Law Lords because of the current outstanding application for leave to appeal in the Leaney case. Accordingly, I beg leave to withdraw the amendment, purely on that basis that I intend to return to it at Report stage. By that time, we may know more about whether there is to be an effective appeal in the Leaney case.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Lord Campbell of Alloway moved Amendment No. 2:

After Clause 1, insert the following new clause:

("Applications to quash indictments appeals

. Where a person makes an application, on or before arraignment, to quash an indictment laid against him, on the ground that in the circumstances of the case the lapse of time from the time when the offence was alleged to have been committed to the date when the prosecution was instituted—

1. (a) is likely to cause substantial prejudice to the defendant in the conduct of his defence; or
2. (b) is likely to make a fair trial impossible,

an appeal shall lie to the Court of Appeal (Criminal Division) from the decision of the Crown Court granting or refusing the application.").

The noble Lord said: The object of the amendment is four-fold. First, it is to confer direct appellate jurisdiction on the Court of Appeal (Criminal Division) to entertain an appeal from the Crown Court in respect of a decision to grant or refuse an application to quash an indictment on grounds of delay. It would thus avoid the expense, inconvenience and untoward publicity of a trial which should never have taken place.

Secondly, it will enable a preliminary submission to be made before arraignment and so avoid the summoning and empanelling of the jury and arrangements for a substantive trial, including the attendance of witnesses. At the moment, preliminary submissions are made after the jury has been empanelled but before plea. All the witnesses are there and all the arrangements have been made for the trial.

Thirdly, it is to confer jurisdiction on the leave to be granted by the Crown Court or the Court of Appeal (Criminal Division) to stay the proceedings on substantive trial on grounds such as the alleged abuse of process, pending the decision of the appellate court. So in a sense and to a large measure it entirely reflects the procedure which operates in Scotland.

Lastly, its purpose is to avoid substantial prejudice to the defence or the prospects of a fair trial—the most usual ground upon which the application is made.

During the passage of the War Crimes (Supplementary Provisions) Bill, the noble and learned Lord, Lord Bridge of Harwich, moved an amendment substantially in that form. I am relieved to see him in his place. The amendment was carried without dissent. The noble and learned Lord was of the opinion that it was a matter of such importance, being concerned with the exercise of judicial discretion under the inherent jurisdiction of the Crown Court, that it was appropriate that such a decision should be subject to the direct appellate process; it should not be left to a single judge, and the Crown as well as the defence should have a right of direct appeal. The noble and learned Lord felt that a provision along those lines should be of general application and not limited to indictments laid under the War Crimes Act.

The noble and learned Lord put it so clearly that with the leave of the Committee I propose to quote what he said: A decision whether or not the prosecution should proceed when it is very stale and when an application for stay on the grounds of abuse of process has been made is a difficult one. As I understand it, it is a decision partly of law and partly of discretion. It is a decision in which a judge may clearly err, and some judges have erred in the past. Not only, in my view, is it desirable—as a matter of general law, quite independently of war crimes trials—that the law should be amended so as to render such a decision subject either to review or appeal in a case where an application to stay has been refused, to avoid what may turn out to be a long, expensive and quite unnecessary trial, it is perhaps even more desirable that the prosecution should be able to appeal against the wrongful grant of stay when, if the stay has been wrongfully granted, the defendant will wrongly and unjustly escape the prosecution altogether. But if that amendment to the law is desirable in general, which is the view that I would commend, it is still more particularly desirable—indeed, I would say essential—in war crimes cases".—[Official Report, 1/2/95; col. 1576.]

The noble and learned Lord then pointed to the fact that in war crimes trials it was inevitable that an application would be made in each case. He said: In my submission, it would be right that the burden and responsibility of pronouncing the last word in such circumstances on the question of whether or not the prosecution should go ahead should rest with a single judge. It would be right that it should be subject to an appeal to the Court of Appeal (Criminal Division)".—[col. 1577.]

My noble and learned friend the Lord Chancellor appeared to take a somewhat similar view to the questions of drafting; namely, that one day the introduction of a general provision along the lines proposed by this amendment should be considered. He said: We are therefore agreed that at present, under the law, no intervention is possible by any higher court in a decision of this kind unless it goes in favour of the prosecution and the review will only take place after the matter has proceeded. It may therefore be subject to appeal if there is a conviction. I can understand the argument that there should be some form of possible appeal at that stage generally. The argument that there should be a right of appeal by the defence is usually met with the answer that, if the whole matter goes against the defence, they will have the right of appeal at the end of proceedings under the present law. But as my noble and learned friend forcefully pointed out, there is no such provision for the prosecution. Therefore one can find that the decision of a judge at first instance in relation to a prosecution generally, not just in relation to war crimes, may defeat the prosecution with no effective appeal in a situation where some may feel that the judge's decision was at least open to question. That is a question of general importance and there is much to be said for it being considered".—[col. 1578.]

My noble and learned friend then said: The general matter is one on which different views may be expressed. I can see that in the future your Lordships' House may be asked to consider the matter as a general question".—[col. 1578.]

Therefore, on the basis of the analysis and the argument of the two noble and learned Lords, I rest this amendment. It would not apply in a multi-count indictment unless an application to quash on all counts on grounds of delay had been granted or refused, at least as at present drafted. It would not apply to an application to quash an indictment on any ground other than delay—entrapment, for example—as at present drafted; or while the charge as laid was misconceived as not being supportable on the evidence sought to be adduced, taking the evidence at its face value.

So it could be that noble Lords, or indeed the Government, may consider that the scope and incidence of this amendment should be enlarged, as the jurisdiction of the Court of Appeal (Criminal Division) is as provided by statute which excludes the exercise of inherent jurisdiction. That lies only within the exclusive remit of the Crown Court trial judge. It is only on conviction that the Court of Appeal (Criminal Division) may correct an erroneous decision of that type and set it aside or order a new trial on grounds which include a refusal to quash.

There is a strong case in principle for the introduction of the proposed amendment, irrespective of redrafting or putative enlargement, to include perhaps any abuse of process, to which I believe the noble and learned Lord, Lord Bridge, referred. Such is the spirit in which this amendment is moved, in the hope, first, that in the light of today's debate it may be largely acceptable to all sides of the Committee. And in the hope that the Government will introduce their own amendment at a subsequent stage—one hopes at Report stage—and indulge in a measure of consultation with noble and learned Lords who are interested in this matter. I have no intention of dividing the Committee today. I beg to move.

5.15 p.m.

Lord Bridge of Harwich

The Committee may well feel that it has heard enough from judicial voices for one afternoon. But I hope that I may be allowed briefly to express my support in principle for the amendment, although I should wish to see it more widely drafted, so as to apply to any application to stay proceedings on indictment on the ground that the prosecution was an abuse of the process of the court. I shall be brief, for the additional reason that the noble Lord, Lord Campbell of Alloway, has already quoted my views expressed on this subject on an earlier occasion.

An application to stay a prosecution on the ground that it is an abuse of procedure, which may be normally on the ground of delay but may also be on other grounds, always raises a serious question, often raises a difficult question and is not an issue which, in my submission, should be left for final decision by a single Crown Court judge, who may be a High Court judge, circuit judge, a recorder or an assistant recorder.

It is perfectly true that if an application to stay is refused and the trial proceeds, there will be an opportunity, if the defendant is eventually convicted, for him to appeal against his conviction. But that is small consolation. The truth is that, where a prosecution has been brought in circumstances which make it an abuse, the defendant ought not to have had to undergo the trauma of standing trial. But as the law now stands, the case is still worse where the Crown unsuccessfully resists the application for a stay of proceedings and the judge grants a stay. In that situation, the Crown has no remedy. If the judge has granted the stay on inadequate grounds, the result is that a guilty man, who probably richly deserves to be punished, walks free and there is nothing that the prosecution can do about it. To my mind, that is a grave defect in our criminal procedure which cries out for remedy.

I understood from the passage which my noble friend cited from what was said by my noble and learned friend the Lord Chancellor on the occasion of the Committee stage of the War Crimes (Supplementary Provisions) Bill, that my noble and learned friend the Lord Chancellor gave at least a qualified welcome to my general proposition that that was an aspect of the criminal procedural law which required remedy. I hope that the noble Baroness the Minister will at least be able to tell us that the Government will favourably consider introducing such a provision.

Baroness Blatch

This new clause would provide a right of appeal to either party against a decision of the Crown Court either to grant or refuse an application to quash an indictment on the grounds that the delay in bringing the case to trial would make a fair trial impossible. Until 1993 it was thought possible for both parties to seek judicial review of such a decision—or, more precisely, of a decision on an application to stay an indictment. However, in the case of Ashton the House of Lords ruled that the High Court did not have jurisdiction to review these decisions, as they were matters, relating to a trial on indictment". The defence can only challenge a decision of the Crown Court to refuse an application on appeal to the Court of Appeal following conviction. There is no means of redress for the prosecution.

I can understand why my noble friend tabled this amendment. But providing a right of interlocutory appeal, as this new clause proposes, would have considerable implications for the administration of justice. It would add an extra stage into the process and further delay the trial. It might be open to exploitation by the defence, who could use such appeals as a delaying tactic. While that would be confined to cases where there had already been a considerable lapse of time, I would suggest that it is all the more important in such cases that further delays be avoided.

Although I can see arguments in favour of a prosecution right of appeal against such decisions, which might result in important criminal proceedings being halted, it is not altogether surprising that one does not exist—rights of appeal have not traditionally been available to the prosecution. That was one of the points made by the noble and learned Lord, Lord Bridge. The defence, on the other hand, if aggrieved by a particular decision of the Crown Court, can have that decision reconsidered by the Court of Appeal following conviction. I believe that that represents adequate redress for the defence. A general right of appeal at the interlocutory stage against such decisions would need a good deal of further consideration before it could be adopted, particularly in view of the possible implications for the handling of court business and the timely conduct of trials. I hope that in the light of those objections, while I understand the anxieties of my noble friend, he will feel able to withdraw his amendment.

Lord Ackner

Before the noble Baroness sits down, will she contemplate that the introduction of the obligation to obtain leave to appeal in the interlocutory stage would solve many of her anxieties in relation to the question of delaying meritless appeals?

Baroness Blatch

The noble and learned Lord makes an interesting point. Perhaps he will allow me to take it away for consideration—it may well be an answer—between now and the next stage of the Bill.

Lord Campbell of Alloway

I am grateful to the noble and learned Lords who spoke and of course to my noble friend the Minister. In relation to the point made by the noble and learned Lord, Lord Ackner, my noble friend's brief was written before I raised the question of seeking leave from the trial judge or the Court of Appeal. I had that very point in mind—that one must have a safeguard against abuse. I hope that the reaction of my right honourable friend the Secretary of State and his advisers will be open to this point and that they will consider that their anxieties will be wholly met in a satisfactory fashion.

I cannot accept the invitation to withdraw the amendment in the sense that I shall never come back to it. I have said that I shall withdraw it today because that is the sensible course to take, particularly in view of the fact that it is manifestly plain that the noble and learned Lord, Lord Bridge, wants to widen the scope of the amendment. If he does, I shall withdraw my amendment and support his. The issue will come back; it will not go away. There is no question of that. On the next occasion I shall certainly divide the Chamber, either in relation to my amendment or in relation to the amendment of the noble and learned Lord, Lord Bridge. I do not mind whether I win or lose, but I believe that it is right to do so.

When this matter has been fully considered at Report stage, I hope that my noble friend the Minister will allow us to entertain constructive discussions as to a form of amendment that may be acceptable to my right honourable friend the Secretary of State, however drafted by the noble and learned Lord, Lord Bridge of Harwich. There is no more to be said at this stage. I ask my noble friend to keep an open mind. It would be a great pity to take up a lot of time in your Lordships' Chamber on a matter that will continue to be pursued and will not go away. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Grounds for allowing and dismissing appeals]:

Lord McIntosh of Haringey moved Amendment No. 3:

Page 2, line 31, leave out from ("conviction)") to end of line 36 and insert ("in subsection (1) (a) (grounds on which the Court of Appeal are to allow or dismiss an appeal), leave out the words "or satisfactory" and insert the words "or may be unsafe".").

The noble Lord said: In moving Amendment No. 3 I shall speak also to Amendments Nos. 4 to 9 which are identical in effect. These are conservative amendments. They have the effect of making the changes to the original Act less extreme than they appear to be in the Bill. I refer to Section 2 of the 1968 Act and subsection (1), which is concerned with grounds on which the Court of Appeal is to allow or dismiss appeals.

The Government have opted for a simple formulation, in that if the Court of Appeal thinks that a conviction is unsafe, it allows the appeal, but otherwise it dismisses it. That is a change from the wording of the 1968 Act which included the words "unsafe or unsatisfactory". For practical purposes we agree that there is no distinction between "unsafe" and "unsatisfactory"—at least I do not agree, but the Court of Appeal has said so and we had better accept what it says as being the position that stands in law.

The Runciman Commission used the words "is unsafe or may be unsafe". If we abandon the use of the word "unsatisfactory", it is necessary to keep a distinction between something which is without doubt unsafe and something which may be unsafe and yet is a proper ground for an appeal to be allowed.

The noble and learned Lord the Lord Chief Justice, who had to leave for another appointment, said at Second Reading that if a verdict "may be" unsafe, then it is unsafe. But that is not the English language. There is a distinction in the English language between something which may be unsafe and something which is unsafe; in other words, is without doubt unsafe. The simple formulation which the Government have chosen is too restrictive and gives too little possibility to the Court of Appeal to allow an appeal. Already we are making changes to the powers of the Court of Appeal. Until now, if a case was unsafe on a point of law it was automatic that the appeal should be allowed. Now all cases will require the leave of the court or a certificate from the trial judge, which was previously the position only in cases that concerned matters other than points of law.

In the evidence given to the Royal Commission on Criminal Justice a lot of people argued that leave to appeal should be abolished in all cases. Does "leave to appeal" add very much to the operation of the Court of Appeal? However, we cannot make that argument now. We are not making such fundamental changes. What we are doing in the Bill is to set up the Criminal Cases Review Commission.

We are proposing a very modest change. We are proposing to go back to more of the wording of the 1968 Act. We are proposing to use the wording that was used by the Runciman Commission. We are proposing that this should provide the proper role for the Court of Appeal in ruling on errors of law and procedure. We are not doing anything revolutionary or dramatic but I believe that it will be possible for the Court of Appeal to act in a more rational and flexible way if these amendments are accepted. I beg to move.

The Deputy Chairman of Committees (Lord Lyell)

I would advise the Committee that if Amendment No. 3 is agreed to, I shall not be able to call Amendment No. 4.

5.30p.m.

Baroness Blatch

Amendment No. 3 would have the effect of maintaining the existing grounds for deciding an appeal against conviction, while replacing "or unsatisfactory" with "or may be unsafe". It is well-known that there has been widespread agreement that Section 2 of the Criminal Appeal Act 1968, while it has served us well, is in need of substantial redrafting. That was reflected in the report of the Royal Commission on Criminal Justice, which argued that the grounds for deciding an appeal were overlapping and unclear and should be redrafted to provide a single, broad ground.

There are many ways in which the current formulation of Section 2 is unnecessarily complex and even self-contradictory, and the reference to both "unsafe" and "unsatisfactory", which would be removed by the amendment, is only one. I shall not embark upon a detailed critique of the 1968 Act, but by way of illustration, under the current formulation, which would be maintained under this amendment, the court would be able to apply the proviso and dismiss an appeal, even when it thought that the conviction was unsafe and should be set aside. That would clearly be meaningless.

We have made it clear throughout the passage of the Bill that our intention is to consolidate the existing practice of the Court of Appeal. The "lurking doubt" test will be maintained, as will the possibility for appeals to be allowed on the grounds of errors of law or material irregularities at trial. In each case, the issue for the court to decide is whether the conviction is unsafe.

I believe that there are considerable advantages in providing a broad ground for deciding an appeal. It allows the court the flexibility to allow an appeal on any ground which it considers renders the conviction unsafe. There are numerous factors which can render a conviction unsafe. There is no need to spell them out in statute because whatever words are used, in the end there is only one question for the court to answer: whether or not the conviction is unsafe. As I shall explain in a moment, I do not in any case consider there to be any advantage in adding the words "or may be unsafe" to the test for allowing an appeal.

Amendments Nos. 4 to 9 take up the recommendation of the Royal Commission on Criminal Justice that the Court of Appeal should allow an appeal against conviction if it thinks that the conviction is or may be unsafe. We considered the Royal Commission's recommendation carefully before deciding to use only the words "is unsafe" and not the words "may be unsafe" in the new test for allowing an appeal. Combining the two phrases suggests that some convictions are more unsafe than others and, accordingly, that some convictions are quashed more thoroughly than others. That is not the intention. We therefore decided that we had to choose between the two.

The difficulty with the phrase "may be unsafe" is that it is inherently uncertain. Under one interpretation almost any conviction may be unsafe. On the other hand, the noble and learned Lord the Lord Chief Justice argued with great eloquence at Second Reading that there was no merit in including in the test the words "or may be unsafe", since the implication of doubt is already inherent in the word "unsafe". He added that a conviction which may be unsafe is unsafe. "Or may be unsafe" would add nothing of value.

Although the test is expressed much more concisely than under the present law, we do not intend it to result in fewer convictions being overturned than at present. We want to consolidate the existing practice of the Court of Appeal and provide as simple and clear a test as possible. I hope that I may be forgiven for quoting once more the noble and learned Lord the Lord Chief Justice, who has said that the revised ground for allowing an appeal is, clear, just, and comprehensible to the ordinary citizen". I hope that the noble Lord is persuaded by these arguments and that he will seek leave to withdraw the amendment.

Lord McIntosh of Haringey

I am afraid that I am not persuaded. The Minister suggests that with these amendments we are proposing that some cases may be more unsafe than others. We are indeed doing just that, because there is not just one course of action that the Court of Appeal may take. There are two courses of action. One would be to quash the conviction; the other would be to order a retrial. Therefore, the possibility of a lower test, which is provided by the phrase "or may be unsafe", is a proper reflection of the actual powers available to the Court of Appeal. It is entirely proper that the law should reflect those two degrees of—there is not a word for "unsafeness" but that is what I mean to say—because the action which the Court of Appeal may take as a result will reflect that.

The Minister then said that almost any case on conviction may in a sense be unsafe. I suppose that in one interpretation of the English language that could be the case. She then went on to applaud the words of the Lord Chief Justice, who said that "is unsafe" is the same as "may be unsafe". The two cannot be combined. One cannot hold both views at the same time. What is provided, as was provided in the Royal Commission report, is a lower test in the phrase "or may be unsafe". It reflects the powers of the Court of Appeal. It properly represents the views which have been expressed by the Court of Appeal in recent months, when the Court of Appeal has been taking a more generous interpretation of cases of this kind. I believe it is important that this House should accurately reflect the current state of mind of the Court of Appeal when it is indeed to be approved of, as I think it is here, and should ensure that the law reflects the recommendations of the Royal Commission on Criminal Justice. Under those circumstances, I am not prepared to withdraw the amendment. I wish to seek the opinion of the Committee.

5.38 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 109.

Division No. 1
CONTENTS
Ashley of Stoke, L.	Judd, L.
Beaumont of Whitley, L.	Kilbracken, L.
Blackstone, B.	Lester of Herne Hill, L.
Broadbridge, L.	Longford, E.
Callaghan of Cardiff, L.	Lovell-Davis, L.
Carter, L.	McIntosh of Haringey, L.
Cocks of Hartcliffe, L.	Mallalieu, B.
David, B.	Masham of Ilton, B.
Desai, L.	Merlyn-Rees, L.
Donoughue, L.	Milner of Leeds, L.
Dormand of Easington, L.	Monkswell, L.
Dubs, L.	Monson, L.
Eatwell, L.	Morris of Castle Morris, L. [Teller.]
Elis-Thomas, L.
Foot, L.	Peston, L.
Gallacher, L.	Redesdale, L.
Geraint, L.	Richard, L.
Gladwin of Clee, L.	Seear, B.
Graham of Edmonton, L. [Teller.]	Serota, B.
	Stoddart of Swindon, L.
Hilton of Eggardon, B.	Strabolgi, L.
Houghton of Sowerby, L.	Taylor of Gryfe, L.
Howie of Troon, L.	Turner of Camden, B.
Jay of Paddington, B.	White, B.
Jeger, B.	Williams of Crosby, B.
Jenkins of Putney, L.	Williams of Elvel, L.

NOT-CONTENTS
Abinger, L.	Dilhorne, V.
Addison, V.	Dixon-Smith, L.
Aldington, L.	Downshire, M.
Alexander of Tunis, E.	Eden of Winton, L.
Annaly, L.	Elles, B.
Archer of Weston-Super-Mare, L.	Elliott of Morpeth, L.
	Elton, L.
Arran, E.	Finsberg, L.
Astor, V.	Flather, B.
Balfour, E.	Gisborough, L.
Bauer, L.	Goschen, V.
Biddulph, L.	Halsbury, E.
Blatch, B.	Harlech, L.
Blyth, L.	Harrowby, E.
Boyd-Carpenter, L.	Hayhoe, L.
Brabazon of Tara, L.	Hemphill, L.
Brougham and Vaux, L.	Henley, L.
Burnham, L.	HolmPatrick, L.
Butterfield, L.	Hooper, B.
Butterworth, L.	Howe, E.
Cadman, L.	Huntly, M.
Caithness, E.	Hylton-Foster, B.
Campbell of Alloway, L.	Inglewood, L. [Teller.]
Carnock, L.	Jenkin of Roding, L.
Chalker of Wallasey, B.	Kinnoull, E.
Chelmsford, V.	Lauderdale, E.
Chesham, L.	Leigh, L.
Clanwilliam, E.	Lindsay, E.
Coleridge, L.	Long, V.
Craigavon, V.	Lucas, L.
Cranborne, V. [Lord Privy Seal.]	Lyell, L.
	McColl of Dulwich, L.
Cumberlege, B.	Mackay of Ardbrecknish, L.
Denham, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Demon of Wakefield, B.

Merrivale, L.	Romney, E.
Mersey, V.	St. Davids, V.
Miller of Hendon, B.	Saltoun of Abernethy, Ly.
Monteagle of Brandon, L.	Scarman, L.
Mottistone, L.	Seccombe, B.
Moyne, L.	Shrewsbury, E.
Munster, E.	Simon of Glaisdale, L.
Nelson, E.	Skelmersdale, L.
Newall, L.	Stewartby, L.
Onslow, E.	Strange, B.
Orkney, E.	Strathclyde, L. [Teller.]
Orr-Ewing, L.	Strathmore and Kinghorne, E
Oxfuird, V.	Sudeley, L.
Park of Monmouth, B.	Swansea, L.
Pearson of Rannoch, L.	Swinfen, L.
Pender, L.	Trumpington, B.
Prentice, L.	Ullswater, V.
Rawlings, B.	Wharton, B.
Renton, L.	Whitelaw, V.
Renwick, L.	Wilberforce, L.
Rodger of Earlsferry, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.46 p.m.

[Amendments Nos. 4 to 9 not moved.]

Clause 2 agreed to.

Clauses 3 and 4 agreed to.

Lord Scarman moved Amendment No. 10:

After Clause 4, insert the following new clause:

("Power to quash unsafe conviction on hearing new evidence

.Where in any appeal the Court of Appeal receives fresh evidence which is admissible and which the Court considers to be capable of belief, and which if believed would render the conviction unsafe, the Court, if it be impracticable to order a new trial, shall allow the appeal and quash the conviction.").

The noble and learned Lord said: The new clause which I am proposing in this amendment is designed to achieve a principled answer to an awkward problem. The problem arises in those appeals where the Court of Appeal receives admissible evidence which it considers capable of belief. In such appeals one would expect the Court of Appeal either to allow the appeal or to order a retrial. But, if a retrial is impracticable or undesirable, should the Court of Appeal be able to decide the question of fact against the appellant and dismiss the appeal? My submission, which I shall argue, is no; hence the amendment introducing this new clause to that effect.

It is an awkward problem and it is discussed extremely well in the Royal Commission's report, Chapter 10, paragraphs 62 and 63. I agree with every word of paragraph 62 but, sadly, as I see it, the commission, in paragraph 63, yields the ground of principle and settles for what it calls, "the sensible alternative" of the Court of Appeal deciding the new question of fact for itself. The court can therefore, if I may borrow a phrase from the report, usurp the function of the jury and dismiss the appeal".

Is there any risk in that? That is a very reasonable question. I regret to say that the record shows that there are real risks. I cite only one instance today of where the Court of Appeal received fresh evidence. It was fresh evidence that we would now say was capable of belief. The Court of Appeal took immense trouble to listen to the new evidence. It refused to order a new trial. It reached a decision, and the Guildford Four lost their appeal. Events have shown that the Court of Appeal reached the wrong decision on the facts when it took that line, and the four accused spent another 15 years in gaol before they were vindicated. I cite that illustration because it shows the great danger of the Court of Appeal venturing into the field of judging evidence, so to speak at first instance, because that evidence, which was adduced before the Court of Appeal in the Guildford Four case, was never seen or heard by the jury in the trial of the Guildford Four.

So there are risks in allowing the Court of Appeal either to refuse a retrial or to feel that one should not be granted and then to go on to consider new facts not considered by the original jury and to reach a decision against the appellant and dismiss the appeal.

I am not the only one to be troubled by this problem and this situation. Lord Devlin, unfortunately no longer with us, was horrified by the law that had developed, and was associated with a well-known House of Lords case, Stafford v. DPP. He was horrified by what he regarded as the lack of principle and the desertion—the impeachment, if you like—of trial by jury as our principle for dealing with indictable cases; by the impeachment that arose when the Court of Appeal took that line by not ordering a retrial but itself entering the lists as the judge of fact.

Having said that, it is fair, I think, to ask me: what do you say are the principles which are offended by that course of action on the part of the Court of Appeal which is at the moment authorised by law—and by laws stated by this House in its judicial capacity? I shall endeavour to tell the Committee what I see to be the principles. I ask myself: what are they? First, the verdict and the conviction founded on it must be unsafe if the new evidence is capable of belief. That verdict (and the conviction founded on it in the trial when the new evidence was neither seen nor heard) is unsafe because it was founded on only part of the evidence, and the jury had no cognisance of the new evidence. Therefore, when deciding the question of fact against the appellant, the Court of Appeal does not make that original verdict safe. It remains an unsafe verdict unless and until there is a jury's verdict based on all the evidence. One can achieve that by a retrial. If there is no retrial, it cannot be achieved. So, what do we end up with under that procedure? We end up with a conviction based on an unsafe verdict which goes to only part of the evidence, and a finding of fact by the Court of Appeal never seen or heard by the original jury. Guilt has therefore been established under that procedure not by a jury, but by an appellate court. That is the first lack of principle in the present law.

Secondly, by itself deciding the new question of fact—that is, the decision on the facts not known to the original jury—the Court of Appeal—and this is perhaps not always understood—inevitably reverses in the case the burden of proof. Why do I say that? In an appeal against a conviction, the appellant goes first and puts his case. The Crown, the prosecutor, responds. When new facts are considered by the court and a ruling is made upon them by the court, the defendant appellant has to prove his case on the new facts. He now goes first. The Crown answers. He no doubt has a reply, but he has to make the going. Where has the presumption of innocence gone? Where, indeed, do we find the accused? He is attempting to establish a defence whereas if he was in the court of first instance, the evidence would be led by the Crown and he would have a presumption of innocence, with the burden of proof resting steadily on the Crown. It is a strange position which arises from a confusion about the appellate process and the trial process when the Court of Appeal takes that line in regard to new evidence and dismisses the appeal.

In the process of the law, confusion and injustice are likely to arise unless it is made absolutely clear that in fresh evidence cases, if it be impracticable or undesirable to order a new trial, the Court of Appeal's duty is to allow the appeal and quash the conviction. Hence my proposed amendment.

I put shortly, and perhaps not as clearly as I should like, the real trouble. We are in very strange waters, and it is important that appeal courts should devote themselves to appeals. Courts of first instance, and certainly a trial by jury—which is of course the right of those facing indictment—are where the facts have to be established, either at first or later. If the Court of Appeal finds itself in a position in which it cannot order a retrial and has the finding of fact, it has to allow the appeal. That is what I suggest. I am extremely disturbed at the consequences of not keeping separate the role of the trial with judge and jury and the role of the Court of Appeal, which is review.

I have one final little observation. In a strange way, when the Court of Appeal dismisses an appeal on new evidence not seen by the judge and jury, it is at the same time denying the appellate stage in the Court of Appeal to the accused, because if it does that there is no Court of Appeal other than the House of Lords to which the defendant can take his case. He has on that issue lost his right to an appeal in the Court of Appeal because the Court of Appeal has acted as judge of fact.

These are serious matters. They are awkward matters. The amendment would get us out of trouble if cases have to be further considered. At the moment it is extremely dangerous to allow the Court of Appeal to make a decision dismissing an appeal on new facts, the evidence of which became available or became known only at the appellate stage. I beg to move.

6 p.m.

Lord McIntosh of Haringey

I listened with a great deal of attention and concern to what the noble and learned Lord had to say. He raises, as he says, difficult matters. They are difficult not just because of the relationship to which he referred between the Court of Appeal and the courts of first instance but because of the relationship between the Court of Appeal and the Criminal Cases Review Commission. His amendment says, "Where in any appeal". That could be an appeal which comes direct to the Court of Appeal, without reference to the commission, or it could be an appeal which has been referred by the Court of Appeal to the commission for investigation. Therefore, the fresh evidence to which the noble and learned Lord refers in the amendment could be evidence which has been examined in an investigation by the commission.

The noble and learned Lord then describes three requirements for the conclusions to which he comes in the amendment: it should be fresh evidence which is admissible; it should be fresh evidence which the court considers capable of belief—the new formulation which has been introduced by Clause 4, which has just been agreed to—and, finally, it has to be evidence which it is believed would render the conviction unsafe.

The noble and learned Lord quotes perhaps the most disturbing evidence of all—the example of the Guildford Four who spent 15 years in prison after the Court of Appeal considered their case, received fresh evidence, did not indicate that the fresh evidence was worthy of belief, or whatever was the phrase under the 1968 Act, and did not indicate whether or not it believed it would have rendered the conviction unsafe but, nevertheless, dismissed the appeal. I am certain that he is right that we must provide in the legislation against such a miscarriage of justice ever happening again.

I am convinced that, whether or not the noble and learned Lord's formulation is correct—I shall listen with great care to what the Minister has to say on the matter—he has made an important point which deserves and needs to be answered if the Bill is to perform perhaps its single most important task: the reduction of such miscarriages of justice, because nothing can eliminate them.

Baroness Blatch

This new clause would require the Court of Appeal to allow an appeal against conviction whenever it decides to receive fresh evidence which could potentially render the conviction unsafe without considering whether the evidence in the court's view does render the conviction unsafe. As I understand it, the reasoning behind this new clause is that the Court of Appeal is not an appropriate tribunal to consider the weight of fresh evidence alongside all the evidence presented to the jury at the original trial. It is suggested that that task should be performed by a jury, or not at all.

The effect of the amendment would be to limit the powers of the Court of Appeal when faced with new evidence which, if believed, would go to the safety of the conviction: it would have either to order a retrial, or, if that were not possible, quash the conviction without ordering a retrial. Both of those powers are available to it now. The third option—which this amendment would remove—is to dismiss the appeal after deciding for itself that the new evidence does, not render the conviction unsafe.

I do not agree that the Court of Appeal is never in a position to assess the weight of new evidence in the context of the evidence heard by the jury. It has shown itself over many years to be capable of performing that function wisely and fairly. I hope the Court of Appeal will always bear in mind its power to order a retrial in fresh evidence cases. But in some cases a retrial simply will not be possible.

There will also be cases where the new evidence may be rebutted by other new evidence adduced by the prosecution. In those cases in particular I do not think it is unreasonable for the court to have a power to assess the strength of the new evidence rather than a duty to allow appeals automatically, without any consideration of their merits.

I do not think that it would be right for the court to quash a conviction, and release an appellant with no prospect of a retrial, without having considered whether or not the conviction is safe. I therefore hope that the amendment will not be pressed.

Perhaps I may mention the case of Stafford, which was raised by the noble and learned Lord, Lord Scarman. In our view, the Stafford judgment was a confirmation of the intention of Parliament. Section 2 of the Criminal Appeal Act 1968 requires the court to allow an appeal if it believes that the conviction is unsafe or unsatisfactory. That is a clear indication that it is for the Court of Appeal, taking account of all the circumstances of the case, to form its own view about the safety of the conviction. In 1992 the European Court of Human Rights held that the exercise of this power was indeed compatible with Article 6 of the European Convention on Human Rights, which guarantees a fair trial.

None of us wants mistakes and we were all saddened by the experience of the Guildford Four. But I am not absolutely certain that this amendment is the way to address that particular problem.

Lord Mishcon

Will the Minister tell the Committee what principle is involved in the following matter, which is our tradition in the law? It is that on a trial on indictment at first instance it is the judge who rules purely on the law and he directs the jury that they must not take into account anything that he says in regard to a finding of fact. The facts must be found by them. Why is that principle a good one and yet a Court of Appeal can decide on a question of evidence and fact? What is the principle involved in that?

Baroness Blatch

The noble Lord has the advantage over me because he is extremely learned in these matters. I am not sure that I, as a total layperson, am able to give him the rationale underpinning that principle. I hope that he will allow me to think about what he has said, research the matter for him and come back with a considered answer at the next stage of the Bill.

Lord McIntosh of Haringey

Perhaps I may refer the Minister to the last sentence of her reply. I did not have an opportunity to make a note, but I understood her to say that she was not absolutely certain that this amendment was the right way to tackle the problem. She identified the problem, as we all have, as being the risk of a miscarriage of justice, such as that which took place in respect of the Guildford Four.

I have never heard in a ministerial brief the phrase, "I am not absolutely certain that the amendment is the right way to do it". If the Minister is not absolutely certain that the amendment is the right way to do it, is there not a strong possibility in her mind and the minds of those in her department that it might be the right way to do it? Without taking anything back, would the Minister care to give some kind of commitment to the noble and learned Lord, Lord Scarman, that she will think about the matter further between now and the Report stage and will discuss it with him?

Baroness Blatch

The noble Lord and I have jousted across the Dispatch Box on many occasions and therefore he will know well that I do not always stick absolutely to my brief. On this occasion I was saying—and I had departed from my brief when I said it—that inevitably, however secure the system and however secure we try to make it, there will always be mistakes. I was saying in my own mind that I was not certain that this was the way to address it.

In response to the point made by the noble Lord, Lord Mishcon, in relation to the principle underpinning one stage of the process as opposed to another, I have said that I shall take that away and think about it. I shall, as I always do between the stages of a Bill, take away everything that has been said during the course of the debate and think about it.

6.15 p.m.

Lord Scarman

I say at once that I do not intend to divide the Committee on this amendment. However, I ask the Minister to bear in mind the extraordinary importance of the point that is raised. It may well be that the proposed new clause by itself is not the way to achieve the result. However, I shall demonstrate the fact that something needs to be done by using other people's words and adopting them as part of my argument.

Many Members of the Committee have read the report of the Royal Commission. I wish to show the real hesitation and doubt that was in the minds of its members and therefore, with permission, I shall read the relevant parts of paragraphs 62 and 63 of the report. Paragraph 62 reads: In Stafford v DPP the House of Lords held that on the proper construction of the statute it was the task of the Court of Appeal when deciding the impact of fresh evidence to decide whether it thinks the verdict is unsafe or unsatisfactory. It should consider the weight of the evidence… This ruling has been criticised, notably by Lord Devlin, who argued that it usurped the function of the jury. In our view, the criticism made by Lord Devlin and others has force insofar as it concerns a decision by the court to hear and evaluate itself the fresh evidence and despite it to reject the appeal". That is the point with which I am dealing. The report continues: In our view, once the court has decided to receive evidence that is relevant and capable of belief, and which could have affected the outcome of the case, it should quash the conviction and order a retrial unless that is not practicable or desirable. The Court of Appeal"— listen to these words, my Lords— which has not seen the other witnesses in the case nor heard their evidence, is not in our view the appropriate tribunal to assess the ultimate credibility and effect on a jury of the fresh evidence. It should normally not decide the question of the weight of the evidence itself unless it is satisfied that the fresh evidence causes the verdict to be unsafe, in which case it should quash the conviction". Paragraph 63 illustrates why the Royal Commission does not take it all the way that I take it and therefore, in fairness to the Committee, I shall read the relevant part of that paragraph. It states: Where a retrial is impracticable or otherwise undesirable, there is an argument"— that is mine— for saying that the Court of Appeal should not usurp the function of the jury but should simply allow the appeal". Here comes its reason for differing. We do not agree. It seems to us unacceptable, particularly after we have recommended that the court should apply a less strict approach to the kind of evidence it will receive, that fresh evidence which the court accepts as being capable of belief should not be tested as far as practicable. We are therefore unanimous in concluding"— and here come the words— that there is no sensible alternative in these circumstances but to leave the Court of Appeal with the function that the House of Lords in Stafford suggested it had under the present statute—of deciding the matter for itself". I have endeavoured to indicate that that sensible alternative—the argument of convenience—should not prevail over the argument of principle which I endeavoured to put before the Committee. I hope that those concerned with the Bill will consider the point that I have endeavoured to make and will appreciate its importance because, as has been said in this Chamber in the past 20 minutes, we cannot have repetitions of the kind of miscarriage of justice that emerged in the Guildford Four case; an injustice that was not put right for 15 years. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Powers exercisable by registrar]:

Baroness Blatch moved Amendment No. 11:

Page 5, line 14, leave out from beginning to ("but") in line 17 and insert ("No variation of the conditions of bail granted to an appellant may be made by the registrar unless he is satisfied that the respondent does not object to the variation;").

The noble Baroness said: This is a minor amendment designed to clarify the drafting of Clause 6, which delegates certain powers of the Court of Appeal to the registrar, including the power, where the prosecution agrees, to vary conditions of bail granted to an appellant. This amendment makes it clear that it is to the proposed variation of the bail conditions, as opposed to the exercise of the power itself, which the prosecution must agree. I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Appeals in cases of death]:

Baroness Blatch moved Amendment No. 12:

Page 5, line 33, leave out ("by virtue of paragraph (a) above") and insert ("in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission").

The noble Baroness said: At present a person's rights of appeal die with him. Clause 7 provides for appeals when the convicted person has died to be conducted on his behalf by a person approved by the Court of Appeal. This is subject to a time limit of one year from the person's death. Amendments Nos. 12 to 17 and 64 to 67 are all minor, technical amendments designed to ensure that this provision operates smoothly.

Amendment No. 12 makes it clear that an appeal can be conducted on behalf of a deceased person following a reference by the Criminal Cases Review Commission, and that the approval of the Court of Appeal is required before a person can pursue the appeal in these circumstances. Amendment No. 13 provides that references by the Criminal Cases Review Commission where the convicted person has died are not subject to the general one-year time limit governing appeals on behalf of deceased persons. This reproduces the existing law, under which the Court of Appeal can consider the appeal of a deceased person following a reference from the Home Secretary, with no fixed time limit. Amendments Nos. 15 and 16 make equivalent provision for Northern Ireland.

Amendments Nos. 14 and 17 to Clause 7, and Amendments Nos. 65, 66 and 67 to Schedule 2, provide that in specified enactments, references to the "accused", the "appellant", or the "convicted person" can be construed, where appropriate, as being or including the person approved to conduct the appeal on behalf of the deceased person. Amendment No. 14 does this for the 1968 Act, Amendment No. 15 for the 1980 Act, Amendment No. 65 for the Costs in Criminal Cases Act (Northern Ireland) 1968, Amendment No. 66 for the Prosecution of Offences Act 1985 and Amendment No. 67 for the Legal Aid Act 1988.

Amendment No. 64 is a consequential amendment to Section 5 of the 1968 Act, which was needed because an appeal under Clause 7 may be conducted by someone other than the convicted person. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 13 to 17:

Page 6, line 8, at beginning insert ("Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission,").

Page 6, leave out lines 11 to 15 and insert: ("(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.").

Page 6, line 29, leave out ("by virtue of paragraph (a) above") and insert ("in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission").

Page 7, line 3, at beginning insert ("Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission,").

Page 7, leave out lines 6 to 10 and insert: ("(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.").

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [The Commission]:

Lord McIntosh of Haringey moved Amendment No. 18:

Page 7, line 21, after first ("The") insert ("Chairman of the Commission, who shall not be a serving or retired member of the judiciary, and the").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 53 to Schedule 1, which is consequential.

With this amendment and with Clause 8 we reach Part II of the Bill, which is concerned with the composition, powers and responsibilities of the Criminal Cases Review Commission. As the Committee knows, on Second Reading we on these Benches gave a warm welcome to the establishment of that commission. If I spent a fair amount of my Second Reading speech pointing out defects in the Bill, I did so in the context of saying explicitly that those were comments about matters which did not detract from the general approval and welcome which we were giving to the establishment of the commission. The question of the chairmanship of the commission is one of those issues with regard to which we see a defect but it will be readily acknowledged—and we acknowledge it—that it is not a defect of the utmost or critical importance to the work of the commission.

Nevertheless, it is important that the commission should be well established as being fully independent of the Court of Appeal, of government, of the police and of other parts of our criminal justice system. In saying that, I am fortified by the view of the Royal Commission which recommended that the chairman should be chosen for his personal qualities rather than any particular qualification or background which he may have. The commission recommended that, given the importance of what it called the authority—which is now the commission—being seen to be independent of the courts in the performance of its functions, the chairman should not be a serving member of the judiciary. I am referring to paragraph 20 on page 184 of the commission's report.

Our amendment goes a little further by suggesting that the chairman of the commission should not be a retired member of the judiciary. That in no way indicates any disrespect either for serving or retired members of the judiciary—and I hasten to say that in the presence of the two noble and learned Lords still present in the Committee. But the principle of independence from the courts is not personal or related to the skills of the judges concerned. We believe—and the Royal Commission believed—that that independence is necessary in order to establish in the minds of the public the entire independence of the new function which the commission is to have. We believe that the amendment which sets out the condition that the chairman should not be a serving or retired member of the judiciary and the consequential amendment in the schedule which removes the other conditions for the appointment of the chairman are modest improvements to the proposals in the Bill for the establishment of the commission. I beg to move.

Baroness Blatch

The noble Lord, Lord McIntosh, is absolutely right in saying that the appointments to the commission will be crucial if it is to inspire confidence in its work. The Government believe that the provisions of Clause 8 achieve that.

I am aware that the Royal Commission suggested that the chairman of the commission should not be a judge. We looked at the point very carefully when drawing up our proposals to create the commission. We concluded however that it would be undesirable to impose such a restriction in the legislation.

In appointing the chairman, and indeed any of the other members, it will be the qualities which the individual in question will bring to his task that will be of paramount importance. We think it would be counterproductive to preclude any candidate who had all the necessary qualities to be an effective chairman simply because he or she might be a judge or a retired judge. The Government intend that the selection process for the chairman should be as open as possible. The post will be advertised in the press. The job description and the type of person we are looking for will be clearly set out. We believe that this will provide us with the widest possible pool of candidates for the post and ensure that the best person available is appointed.

The noble Lord, Lord McIntosh, referred to a very important point in relation to the commission's independence from the courts, the police and government. It is important that we do not confuse the person with the institution. It seems curious to suggest that judges, of all people, lack the ability and personal independence to adapt vigorously to whatever task they are required to carry out.

If it were logical to exclude judges, should we not also exclude lawyers who might side with the prosecution or the defence depending on their usual kind of work? I believe it is fair to say that people such as judges do not have a deficit in the area of objectivity, in the balance of judgment, in impartiality, in analytical skills and, indeed, in good communication skills. Therefore, I hope that we would not, by way of the amendment, preclude the possibility of a judge, or a retired judge, becoming the chairman.

6.30 p.m.

Lord McIntosh of Haringey

It was useful to have in the Minister's reply the renewed assertion of the independence of the commission. I am grateful for that fact. Of course, no one is saying that judges, or retired judges, are not capable of doing things which are entirely different from their judicial work. Indeed, the outstanding example in that respect at present is Judge Tumim who is about to retire as Chief Inspector of Prisons. He has demonstrated the most admirable independence from the Government, from the Prison Service and, indeed, from almost everyone he has come across. Indeed, he has shown the most admirable dedication for the welfare of both those who serve in prisons as staff and those who are incarcerated. He will be a very difficult man to replace.

Of course, there has never been any question that the judiciary had a particular role in the running of the Prison Service. Therefore, there has never been any conflict of interest between Judge Tumim and the job that he had to do as chief inspector. I do not believe that that is the case here. It is important that the public should see that the commission is not simply an extension of the Court of Appeal. That is the impression that would be given—whatever the procedures for selection—if the result of such a procedure were that someone who might otherwise serve in the Court of Appeal was also appointed as chairman of the commission. Whatever the qualities of such a person, I think that that would be regrettable. It would also inhibit the effective working of the commission as an independent body.

I said on Second Reading that the relationship between the commission and the Court of Appeal is the most difficult, single subject underlying the Bill; indeed, a whole range of problems arise. We are discussing just one of them. It is not the most important and not a matter upon which I wish to divide Members of the Committee. I am mildly grateful for what the Minister said about the appointment system. It is with some regret that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 19:

Page 7, line 22, at end insert: ("() In selecting names to recommend to Her Majesty as members of the Commission, the Prime Minister shall—

1. (a) seek to ensure that there is a balance of appropriate knowledge, experience and skills within the membership,
2. (b) submit a list of proposed members to a Committee of the House of Commons for comment, and
3. (c) consider any comments received from the Committee to which he has submitted the list before submitting the list of proposed members to Her Majesty.").

The noble Lord said: In moving the above amendment, I should like to speak also to Amendments Nos. 20, 21 and 22. They are all concerned, not with the chairman of the commission, but with its members. The procedure for the membership of the commission which has been proposed—and if there is further news in that respect from the Minister, it would be interesting to hear it—is comparable to the procedure for the appointment of Lords Justice of Appeal. In other words, it is by Her Majesty on the recommendation of the Prime Minister.

It is clearly not an issue upon which the Prime Minister sits down with Her Majesty at the breakfast table and they think of a few names for an appointment. It does not actually happen that way, although the legislation requires that it should be expressed in that way. It means that the Government will appoint the members of the commission. Let us be quite open about that aspect of the matter.

However, we believe that there should be both additional requirements for the qualifications of the members of the commission—and they are contained in Amendments Nos. 20, 21 and 22—and also some involvement of the other place in the appointment to establish the independence of the commission from the Government. That is provided for in Amendment No. 19. Therefore, we are still keeping to the formula about the recommendation to Her Majesty by the Prime Minister and we are still seeking to ensure that there is a balance of appropriate knowledge, experience and skills. However, we suggest that the Prime Minister should submit a list of proposed members to a committee in the other place for comment, and consider the comments received from it before submitting the proposed list to Her Majesty.

We are proposing a very weak formulation. It does not give the power of veto to the committee in another place. Moreover, it does not impose any violent obligation on the Prime Minister; or, indeed, to whomsoever he may delegate the task. However, it gives some indication of the concern of the other place and, therefore, of the general public in the independence of the commission. That is the purpose of Amendment No. 19.

Amendment No. 20 is designed to go against, to some extent, or to complement one of the proposals in the Bill. Clause 8(5) says that at least one-third of the members of the commission, shall be persons who arc legally qualified", and then goes on to define the term "legally qualified". We do not object to that; but we do think that the commission should not be stuffed with lawyers. Although the minimum of one-third is acceptable, we believe that a maximum of "half should be stipulated. In our view, practising or retired solicitors, barristers or judges should not in total make up more than half of the members of the commission.

Amendment No. 21 relates to a member of the commission who should have "relevant scientific experience". What we really mean is forensic expertise. However, I am told that the word "forensic" is not a concept which is recognised in English or Scottish law. That surprises me, but that is the advice that I have been given. I should remind Members of the Committee that the Royal Commission was set up in the first place precisely because of the defects in forensic evidence in the case of the Birmingham Six in particular, but also in the cases of the Maguire Seven and of Judith Ward. Both the Royal Commission and the Science and Technology Committee of this place (which was chaired by the noble Lord, Lord Dainton), said that there should be some greater involvement and a greater degree of independence of the forensic science profession—if that is the right word—as regards its ability to give advice to the Home Secretary. In a whole chapter on forensic science, the Royal Commission referred to the need for a forensic science advisory council. The same view was taken by the committee of the noble Lord, Lord Dainton.

We are not proposing a forensic science advisory council. However desirable it may be, that does seem to go beyond the scope of the Bill. However, we do propose—perhaps as a precursor to the establishment of an advisory council—that at least one member of the commission should have the "relevant scientific experience", which means forensic expertise. We do so for a number of very powerful reasons which have been helpfully set out for us by the Royal Society for Chemistry. First, as I said when I referred to the establishment of the Royal Commission, there is the importance of scientific evidence and expertise in cases of miscarriages of justice. Secondly, in view of the rather fragmented nature of the forensic science business (some of it is a business, some of it is under public control and some of it is in the hands of the police), there is the need for an independent voice from forensic scientists around the table at which the new commission will sit. Thirdly, because improvements in forensic science will heavily affect our ability to deal with and reduce miscarriages of justice, it is necessary to have someone with scientific experience to help in the promotion of research and development.

Fourthly, there is the issue of professional standards, of quality assurance, of education and training, and the commission seems to us to be a good place for an expert person to promote those desirable facets of forensic science. Finally, there is the issue of the individual registration of forensic scientists which does not exist at the moment, which both the Royal Commission and the sub-committee argued for, and which, if it existed, would, we believe, help to ensure that miscarriages of justice could be limited by professional certification by individual registration of the forensic scientists who take part in the work of the criminal justice system.

The final amendment in the group, Amendment No. 22, is concerned with knowledge or experience of mentally disordered persons". I think it is pretty well recognised that a high proportion of those who find themselves before the courts have problems of mental disorder as defined in Section 1 of the Mental Health Act 1983, and a higher proportion is likely to find themselves applying to the commission and to the Court of Appeal against conviction and sentence because one of the most difficult boundaries which will affect these cases is going to be whether the applicant was in fact capable of knowing about the crime and of really truly being guilty of the crime.

A great deal of the wording of the Bill is concerned with those different aspects of responsibility. A good deal of the time of the commission and of the Court of Appeal, I am sure, will be concerned with those issues. Therefore, again, it would be helpful to have a member of the commission with the kind of knowledge or experience which is referred to in Amendment No. 22. These are intended to be constructive suggestions for the composition of the body. They are not intended to take away all, or most, of the power of the Prime Minister in making recommendations to Her Majesty, but they are intended to show the wide range of needs on which expertise will be needed on the part of members of the commission. I beg to move.

Baroness Blatch

The noble Lord makes important points about the composition of this body; but again we do not think it right to depart from the long established precedent that Parliament sets out the framework in legislation for making relevant public appointments but does not, except in exceptional circumstances such as the case of the Comptroller and Auditor-General, involve itself in the process of making individual appointments. The commission is not a creature of Parliament but an independent commission. The appointments procedure we propose in the Bill underlines that fact. To involve Parliament in the selection process—for that is what it would mean—would draw the commission into the political arena in a wholly unacceptable way. And to add a further tier to the selection process would result in delay and uncertainty in recruiting and filling posts which I think would be hard to justify.

The Government intend that the selection procedure for members should be as open as possible. The posts of all the members of the commission, including the chairman (as we have already discussed) will be advertised in the press. The job description for the posts and the types of person we are looking for will be clearly set out. Candidates will be subject to an appropriate selection procedure and a shortlist of suggested candidates for the posts will be put to the Prime Minister. Our proposals to advertise the posts—and indeed the posts of all the staff of the commission—will provide access to the widest possible pool of candidates for the posts. Selection from those who apply will be on merit, based on the skills needed to do the job effectively. This, I suggest, is the right approach to take.

Turning to Amendments Nos. 20 to 22, these seek to specify more precisely the experience which individual members of the commission should possess. Amendment No. 20 would require that practising or retired solicitors, barristers or judges did not comprise more than half the members of the commission. I understand the concern that lawyers should not dominate the commission but do not think that the provisions in the Bill will have this result. The requirement in Clause 8 that at least one-third of the members be legally qualified and that at least two-thirds should have knowledge and experience of the criminal justice system will ensure that they reflect a balance of appropriate skills and expertise.

Amendment No. 21 would require that of the two-thirds of members with knowledge and experience of the criminal justice system, at least one member shall have relevant scientific experience; and Amendment No. 22 would require that at least one should have knowledge or experience in the field of treating the mentally ill. While I agree that it would be helpful to the commission to have access to expertise in both these fields, we do not think it sensible to be so prescriptive because there will be many more interests that could be taken into account. Being prescriptive in this way can lead to rigidity. And rigidity could render the commission less effective than it might otherwise be. It would be very unfortunate, for example, if a potential candidate with excellent qualifications had to be turned down just because the commission's quota of, say, lawyers or whatever had already been filled. It can raise other difficulties, too. Today many people have been trained in more than one discipline. We have lawyers who have turned into policemen and vice versa; we have scientists who have branched out into other disciplines. If we are too prescriptive in the Bill we could again rule out the good candidate for appointment because he or she fails to fit the exact requirements for the post on offer.

The Government believe that the best approach is to set broad guidelines as to the experience and expertise necessary to serve on the commission—as we have done in Clause 8—and then to appoint the best candidate for the posts. This will allow Her Majesty to select the appropriate balance of skills and experience required at any one time—not just at the start of the commission's work but in the years to come. Any gaps in the members' knowledge and expertise can be filled as necessary by the recruitment of appropriately qualified staff and by the commission seeking expert reports and opinions. It will be open to the members to do this wherever they think it appropriate and practicable.

The commission will have a varied and challenging workload. The members will have their own caseload and will contribute to the discussions on the cases of others. The cases with which they will deal will not, if current experience is anything to go by, fit into neat pigeon holes, for example, forensic consideration; psychiatric problems; misconduct by police or other officers. Miscarriage cases raise many different issues and each will have to be considered properly and dealt with appropriately. For example, the member of the commission with forensic expertise will not be called upon to deal with every case which raises question marks about the forensic evidence. That would not be feasible. All the members will need to be capable of tackling a wide range of cases calling on, and using, their fellow members' expertise as necessary.

The Committee will have gathered from this that the members will need a broad range of general skills—and, in particular, the ability to absorb large quantities of complex and possibly conflicting information, and to apply an open mind—in addition to any specialised skills which they might have. It is for these reasons that the Bill sets out only the broad requirements for the qualifications for membership. The Government believe that this is the best approach—the one most likely to result in the spread of skills and knowledge needed to undertake the commission's work effectively. The Committee will understand therefore that I cannot accept the amendments and I hope that with that explanation the noble Lord will feel able not to press them.

Lord McIntosh of Haringey

There is some good news and some bad news in that reply. The good news is that the Minister's response to Amendments Nos. 21 and 22 was specifically—I hope I am quoting her correctly—that it would be helpful first of all to have the scientific expertise and then knowledge or experience of mentally disordered persons on the commission. I hope that when the selection process takes place, there will be specific reference to those two kinds of expertise as part of the process, whether it is by public advertisement or some other selection procedure. It would be helpful if the Minister were to indicate that the recognition that such skills were relevant and helpful could be included in the selection process.

Baroness Blatch

I did indeed say that they are skills that would be welcome. However, we are set against making them absolutely prescriptive. I think that I am right in saying that it will be possible for this Chamber to see the descriptions of the kind of skills that will be required. If I am wrong about that I shall write to the noble Lord.

Nevertheless, I take the points that he made and I shall consider them. If I need to give him a fuller answer I shall do so between now and the next stage of the Bill.

Lord McIntosh of Haringey

I am most grateful to the noble Baroness.

I return to Amendment No. 20, which concerns the legal profession. Here it is the Minister who is being rigid, not me. The Bill sets a minimum requirement that a third of all the members shall be persons who are legally qualified, as defined, and two thirds shall be persons who have knowledge or experience of any aspect of the criminal justice system. The Bill rightly states that for this purpose the criminal justice system includes the investigation of offences and the treatment of offenders. Therefore, presumably, it at least includes the police service and the Prison Service. However, that category could also include psychiatrists, probation officers or a number of other skills which are relevant but which are not normally thought of as part of the criminal justice system.

If it is not the kiss of death to him, the person I should like to see on the commission is Peter Hill, who produced so many effective "Rough Justice" programmes for the BBC. He has a profound knowledge of the criminal justice system as a result of having fought for the prevention and remedy of miscarriages of justice over a number of years.

We must not assume, as the Government seem to assume, that membership of the legal profession or experience of the criminal justice system, if too tightly defined, is the only qualification for membership of the commission.

I hope that we shall not assume that the only important task of the commission will be the control of investigations. I hope that the commission will act more widely and will undertake some analysis in the preparation of its report each year to the Home Secretary, which will enable it to make wider recommendations about means of reducing or eliminating miscarriages of justice in the future. I hope that it will have an advisory function as well as an investigative function. I hope that that, too, will be taken into account when the members of the commission are appointed.

With those provisos, and taking on board the modest indications given by the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 22 not moved.]

Clause 8 agreed to.

Clauses 9 to 12 agreed to.

Clause 13 [General provisions about references]:

Baroness Mallalieu moved Amendment No. 23:

Page 10, line 34, after ("raised") insert ("or not adequately raised or not adequately considered").

The noble Baroness said: In moving Amendment No. 23 I shall speak also to Amendment No. 25, which is consequential.

In our submission to the Committee, this is an important amendment. The provisions of the Bill, as presently drafted in Clause 13, allow referral to be made by the commission to the Court of Appeal only if there is new evidence or new argument which has not been raised in any previous proceedings. It would be unfortunate if the new review commission were to be prevented by that drafting from referring cases where it seems to the commission that there is a real possibility that the conviction was unsafe but the relevant argument or evidence had been raised in some rudimentary or insufficient fashion either at the original trial or subsequent appeal. If the object of the Bill is to provide a means by which miscarriages of justice based on an unsafe conviction can be picked up and corrected, I seek to persuade the Committee and the noble Baroness that it would be wrong to exclude that category of cases out of hand in the initial drafting.

Amendment No. 23 seeks to widen the category of cases which may be referred by the commission to the Court of Appeal to include those cases where the commission feels both that there is evidence or argument which it believes gives rise to a real possibility that the conviction is unsafe and that that material has not be adequately raised or considered before. That might arise in a number of different ways. I could give a great many examples, but I shall not do so because of the lateness of the hour. I shall confine myself simply to two examples.

First, our knowledge and recognition of the facts which can lead to a miscarriage of justice is ever-increasing in the light both of experience and research. Interpretation by the Court of Appeal is not static either. The common law is constantly developing and, one hopes, progressing. We now recognise additional factors which can lead to miscarriages of justice and the unreliability of certain kinds of evidence which even 10 years ago would not have been fully understood or whose significance would not have been appreciated. Much of our experience and learning has, sadly, come from experience of such miscarriages.

Appeals which were rejected in the past would in some cases now appear to be likely to succeed. That is particularly true in the experience of the organisation Justice in relation to cases which were determined before the safeguards of the Police and Criminal Evidence Act came into force in 1986. Those safeguards have not only protected some suspects; they have also heightened the awareness of the courts of some of the ways in which untrue or misleading admissions can be made by the innocent under oppressive circumstances.

By way of one specific example from Justice's 1994 report, Unreliable Evidence, in 1984 a man called Peter Fell was convicted of murder on the basis of confessions made by him to police officers during interviews which were conducted over two days and which lasted some eight-and-a-half hours. His requests for a solicitor during that time were ignored. No solicitor was present. There was no identification evidence and no forensic link with the crime. The trial judge, while he acknowledged that there had been a breach of the Judges' Rules, refused to exclude his confession. Back in 1985 the Court of Appeal upheld the trial judge's view saying in effect that it was the pursuit of truth and the interests of justice which both authorised and required the officers to deny Fell the assistance of a solicitor.

By 1992, four years after the implementation of the Police and Criminal Evidence Act, a very different approach by the Court of Appeal to such matters is illustrated by the judgment given in the case of Miller, Paris and Abullahi (better known as the "Cardiff Three" case) where convictions were quashed on the basis that admissions which had been made under police questioning should have been ruled as inadmissible by the trial judge. At that time the judgment of the Court of Appeal attached great importance not only to the presence of a solicitor but to his active intervention, saying that it was of the first importance that a solicitor fulfilling the exacting duty of assisting a suspect during interviews should discharge his functions both responsibly and courageously.

I understand that Fell's lawyers are considering a renewed petition. Under the Bill as presently drafted, if it were to become law, his case could not properly be referred by the commission to the Court of Appeal.

Justice's report identified some 17 cases where convictions had been secured before the passing of the PACE Act based on disputed confession evidence, together with allegations of police malpractice, and which would appear now to be challengeable. All of those would appear to be excluded under the present wording of the Bill.

We contend that it is important that these cases should be capable of being reconsidered by the review body and reconsidered in the light of current practice and greater jurisprudential knowledge.

Secondly—and this is every bit as important—as a practising lawyer it is right that I should draw the attention of the Committee to a category of cases which, as the Bill is presently drafted, would lie outside its scope of reference. Incompetence, inadvertence, errors of judgment and failure to appreciate the significance of a piece of evidence or argument on the part of lawyers acting for the accused are features of every legal system which is practised by human beings. I personally believe that the standard of competence at the Bar at which I practise is generally very high indeed. But, as those of us who have been in practice for any length of time know, there are occasions when lawyers make mistakes. Sometimes it is obvious to other people at the time. Sometimes it is only with hindsight—particularly in a long or complex trial which may involve many witnesses and literally thousands of pages of statements and exhibits—that the failure of the defendant's representative to advance a line of argument fully or to pursue an area of evidence adequately is apparent. It cannot surely be right to frame this new and important piece of legislation in such a way as to penalise a defendant whom the commission believes may have been wrongly convicted because his lawyer erred in not pursuing adequately a line of argument or evidence.

I, of course, accept—I anticipate that this may be the response of the Minister—that there must be finality. No one, least of all those of us on this side, wants to see the time of the commission or the Court of Appeal spent trampling over well-trodden ground. Clearly, if a matter has been adequately examined at trial or later in the Court of Appeal, the commission should not be adding to the burden of the Court of Appeal with a repetitive review. But cases in which the initial argument and the evidence were inadequately presented should not be excluded. This small measure is, in our submission, important. I hope that the noble Baroness will be able to respond favourably.

Lord Hutchinson of Lullington

As a past practitioner, and one who is now very much out of touch with what is going on in the criminal courts, I support the noble Baroness. My experience has led me to appreciate that miscarriages of justice have taken place and will continue to take place because of the incompetence of lawyers and sometimes of judges or magistrates. It is an area with which in the past the Court of Appeal has failed so often to deal in the sense of allowing appeals when lawyers have made mistakes.

It must be of the greatest importance that this commission should not be hamstrung by the raising of some technical or legalistic point, it being said, "This was a matter that was raised at the trial or on appeal".

There are great dangers which lay Members of the Committee may not appreciate when young counsel, and often not so young counsel, are in the Court of Appeal, presenting, say, three grounds of appeal. The Court of Appeal may say, "Mr. X, it is your second ground which is the important one, is it not?" The advocate then feels at once, "Ah, I can argue the second point". He argues the second point and believes that he has put forward an excellent argument and that the court is with him. He will then skate over the other grounds quickly and no doubt sit down. Then to his surprise and astonishment the court finds against him on the point which it had indicated was the important one. In that way, a point is argued only for, say, two minutes. It is dealt with inadequately. The Court of Appeal will not have put its mind to it.

The noble Baroness mentioned Justice, when referring to cases after they have left the Court of Appeal. In the old days, when Tom Sargant would ask one to go through the papers of a case to see whether there were any grounds for thinking that there was a miscarriage of justice, how often would one say, "Oh, but the point here was inadequately argued. The judge missed the point, and the lawyer missed the point, but now it is too late; and it cannot be raised because the point has been raised but hopelessly inadequately".

I hope that the Minister will give serious consideration to this suggestion because I assure her that very often it is a basic reason that miscarriages of justice take place.

Viscount Runciman of Doxford

I add my strong support to the amendment and endorse what I have heard from the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Hutchinson. This matter was discussed at some considerable length during the deliberations of the Royal Commission which resulted in recommendations.

Let me say now what I would have said if I had not been abroad at Second Reading. I am delighted at the welcome that has been given to a Bill which is so closely based on what I believe is one of the most important single recommendations of the Royal Commission which it was my privilege to chair. We were well aware of the history of the argument for finality. We were, I think I can say, unanimous that the cases on record showed quite conclusively that this argument had in effect acted against the interests of justice: that deserving appellants had not had the hearing which they deserved in the Court of Appeal because the court was at that stage of its history anxious—we would have said excessively anxious—that the defendant should not have (as it has sometimes been put) a second bite at the cherry.

I seriously believe, as does the noble Baroness, Lady Mallalieu, that there is no downside to extending the clause by this small but important amendment. The amendment makes it quite clear that not only is the new commission entitled, but indeed has an obligation, to consider whether a matter which has been raised in the court of first instance has been raised so adequately, effectively and competently that the commission can be assured that there is no possibility of a miscarriage of justice of the kind which it exists to investigate and on which it might make a recommendation to the Court of Appeal. I very much hope that the Government will consider the amendment favourably.

Baroness Blatch

Clause 13 requires that there should be some new element for the courts to focus on before a referral of a conviction, verdict, finding or sentence may be made. If all the matters raised with the commission have already been raised at trial, or on a previous appeal, then the courts have had an opportunity to consider the case and will have reached a clear decision after due consideration.

The amendment would enable the commission to refer a case on no grounds other than that, in its opinion, the courts had given insufficient consideration to some matter or matters that had come before it. That would not be right as it would put the commission in the invidious position of asserting its opinion or judgment on a matter above that of the courts. The commission is not a court of last resort, second guessing, sitting over and above the appellate courts.

The amendment could also enable the commission to refer a case on the basis that counsel had failed to put an argument with sufficient conviction, or had not presented new evidence with sufficient clarity. It could result in every unsuccessful appellant going immediately to the commission saying, "My case was inadequately presented, or inadequately considered". On what basis could the commission decide between all those? How would it distinguish between that great number of applications?

The Bill deliberately allows the commission the opportunity to exercise a wide degree of judgment about what qualifies as "new", depending on the circumstances of the case. Where an argument was so poorly presented that the courts may have been misled, or where the applicant's case was not put to the court, then the commission could reasonably regard such matters as new and could refer. But if the assertion was merely that the defence counsel had been out-performed by the prosecution, then in my view that would not be a sufficient ground for reopening a case after appeal. However, the amendment would allow that.

The amendment strikes at the nature of the relationship between the commission and the courts because it appears to allow the commission to usurp the role of the courts. However delicately the commission approached its task, therefore, it would be exposed to great pressure to claim a function properly that of the courts.

The noble Baroness raised the issue of incompetence and asked whether incompetent advocacy would be deemed an acceptable argument for failure to adduce material at an earlier stage of the proceedings. That would be determined based on the individual circumstances of a case and having regard to the practice of the Court of Appeal. It could prove a factor if, for example, incompetence led directly to a vital aspect of the defence's case not being put to the jury. So there would be that flexibility to make that judgment.

The noble Baroness asked me whether we need to consider the views of the law taken by the Court of Appeal. The commission should be able to interpret the intention flexibly—a point which I have already made—so as to have regard to a change in the Court of Appeal's view of the law as being capable of finding a new argument. So on the basis of believing that there is a case for founding a new argument, that too would be open to a judgment that the commission could allow the appeal.

I am not sure that I have given the most comprehensive and lucid explanation in relation to the amendment, but I hope that it will not be pressed tonight.

Baroness Mallalieu

With respect, the noble Baroness is not correct when she says that the effect of the amendment would be to make it open to an applicant to the commission to press for his case to be referred solely on the basis that a matter had not been raised adequately or properly before that. Clause 13(1) (a) requires the commission, before it makes such a referral, to be satisfied that there exists an argument or evidence which gives rise to a real possibility that the conviction verdict or finding would not be upheld, were the reference to be made. In other words, the commission would have to be satisfied, first, that in its view there was a possibility that it was an unsafe conviction.

The noble Baroness has heard the views of others, and I am grateful for the support of the noble Viscount, Lord Runciman, and the noble Lord, Lord Hutchinson, both of whom have vast experience in connection with the matter. I am unhappy with the response that the noble Baroness has given so far tonight, but I was cheered a little earlier in relation to a previous amendment. She said in one context that she was anxious that the legislation should not be inflexible. I was also cheered when she said that it was her practice, after the Committee stage, to look again at the arguments that had been advanced. I very much hope that this important point is one that she and her department will reconsider. If she feels unable to reintroduce it herself, then it is something to which I would wish to return at a later stage. However, this evening I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Trumpington

My Lords, I beg to move that the House do now resume. In moving the Motion, I suggest that this business be not resumed for 10 minutes.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.