Criminal Appeal Bill

HL Deb 26 June 1995 vol 565 cc530-89

3.6 p.m.

Report received.

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: My Lords, some 52 years ago in a case in your Lordships' House called the General Medical Council v. Spackman, Lord Atkin, one of my most distinguished predecessors, made the following observation: Convenience and justice are seldom on speaking terms".

The validity of that proposition will be amply borne out by the debate on my amendment. It will be my submission that the requirements of justice are the foundation of the amendment, whereas the demands of convenience dictate the Government's opposition.

I wish to make good my observation. As your Lordships know, there are two types of life sentence. There is the mandatory life sentence which applies automatically to all cases of murder; there arc no longer categories of murder because that proved unworkable. Murder, therefore, applies to a whole range of killings from the mercy killing through to the excessive use of self-defence, through an intent to do grievous bodily harm (the intent to kill is not necessary) up to the worst type of murder, terrorism.

The other type of life sentence is the discretionary life sentence, the sentence which a judge is entitled to impose if he thinks it appropriate, in a wide range of cases covering attempted murder, manslaughter, cases dealing with explosives and the like. Those cases can involve offenders who are a great deal more dangerous and more of a risk to the community than those convicted of murder. I believe that your Lordships had an example last week of a man who entered a school and sprayed bullets around, not killing but obviously attempting to murder. He had life sentences imposed upon him.

Since 1991, there has been a significant difference between the procedures relative to the two types of life sentence. It has come about as the result of decisions in the courts and in the European Court. Until those decisions, the alteration had been strongly resisted by the Government. I draw the attention of the House to the Criminal Justice Act 1991, and in particular to Section 34. It relates to discretionary life sentences. Under that section a judge may specify what is known as the relevant period; namely, the period to cover retribution (a rather pompous name for punishment) and deterrence. There remains, quite apart from the relevant period, the time that is necessary to expire before the offender is safe to be released. The judge specifies the relevant period, be it 10, 15 or 20 years.

In 1993, the Lord Chief Justice passed a practice direction stating that that section should be resorted to by judges except in very exceptional cases. The consequence of the section and the practice direction is quite simply that the judge in the discretionary life sentence hears submissions from counsel in open court. He then decides what is the relevant period for retribution and deterrence. There is then available an appeal. If and when the case goes to appeal, once again the Court of Appeal Criminal Division hears submissions and decides whether the trial judge was right or wrong and, if he was wrong, corrects the decision.

There has thus been produced not only a consistency in regard to how the discretionary life prisoner is treated, but there is also—this is very important, and it caused the noble Lord, Lord Campbell, to agree to support the amendment on the last occasion—the cessation, as the result of this procedure, of the behind-the-scenes correspondence—

Lord Campbell of Alloway

Will the noble and learned Lord forgive me for intervening? I did not support the amendment. I supported the recommendation in open court and sought time to consider what was said. I thank the noble and learned Lord.

Lord Ackner

I am grateful to the noble Lord. My only reference is to column 1480 of Hansard. Following a number of questions directed by the noble Lord to the Lord Chief Justice, the noble Lord made this intervention: I am grateful to the noble and learned Lord [the noble Lord, Lord Taylor]. 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".—[Official Report, 8/6/95; col. 1480.] That sounds pretty clear to me.

As I was saying before the intervention, one of the consequences is that there is no behind-the-scenes correspondence, as exists at the moment in the mandatory life sentence, with the trial judge indicating by confidential letter what he believes should be the appropriate period for retribution and deterrence, and a similar letter by the Lord Chief Justice, who, having considered the trial judge's recommendation—with nothing else to go on; he has heard no mitigation—gives his view. In other words, it was the transparency that now exists which so moved the noble Lord, Lord Campbell, and others to see the wisdom of openness in this situation.

In discretionary life sentence cases, after the prisoner has served what is referred to (as I have already indicated) as the period for punishment and deterrence, the Parole Board considers whether or not he is safe to be released. If it concludes that he is, that is the end of the matter, and there is no discretion in the Home Secretary to prolong his incarceration. The Government, through the Home Secretary, currently have the discretion to decide how long a murderer should spend in prison. I wish to emphasise that this amendment in no way prejudices or detracts from that discretion.

I now turn to the mandatory life sentence. Under Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 it is provided that, On sentencing any person convicted of murder to imprisonment for life the Court may at the same lime 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 under", the appropriate section.

Last April there occurred the case of R. v. Leaney. Leaney had been convicted of murder. He, a young man, stabbed and killed another young man. The trial judge concluded that there was an element of racialism about the events. He also concluded that Leaney was a danger generally to the public. Exercising the power to which I just referred, he made a recommendation for 20 years. With the leave of the Court of Appeal Criminal Division, Leaney appealed. The court, presided over by the Lord Chief Justice, was not satisfied that there was an element of racialism or that Leaney was a danger. It concluded that the 20-year minimum recommendation was excessive. But it also concluded, with marked reluctance, that it had no power to interfere with the recommendation because it was not part of the sentence: the appeal jurisdiction relates only to a sentence or an order of the court, and this was neither. There were three previous decisions of the Court of Appeal saying exactly the same. Therefore the appeal was dismissed. But the Lord Chief Justice commented that this threw up nowadays, as a result of the 1991 Act, a series of anomalies in the procedure dealing with life sentences which Parliament might wish to take an early step to put right. Leave to appeal was refused.

An hour or two before I rose to move this amendment in Committee, I learnt that Mr. Leaney had applied to this House for leave to appeal. That meant that none of the sitting Law Lords could take part in the debate, as one or more of them might be involved in hearing the application for leave and, if leave was granted, hearing the substantive appeal. Accordingly, I said in terms that I would not divide the Committee, since, by the time the matter came up on Report, one might know with greater certainty what was the situation of the appeal. I am happy to tell the House that there is certainty: the application for leave was rejected. That is therefore the end of that case, in the sense that the decision in the Court of Appeal remains as it is. I am told that there was no question of those who heard the application being other than entirely of the view of the Court of Appeal, Criminal Division, both in relation to the recommendation being excessive and to there obviously being a need for an appeal; also, in the final conclusion, that there was no provision for appeal. If the debate continues for long enough I shall hope for the arrival of one or more sitting members of the Lords of Appeal—because my brothers sit until at least 4 o'clock—rather than have your Lordships rely upon the retired Law Lords. But this is not a filibuster speech.

My amendment seeks to provide the same four quite essential requirements of justice which apply to the discretionary life sentences. First, it would enable the judge to hear submissions before he decided upon his recommendation. Secondly, the judge would make his recommendation in open court. Thirdly, there would a right to appeal. Fourthly, as I indicated to your Lordships on the last occasion and as the noble and learned Lord the Lord Chief Justice confirmed, there would be an analogous practice direction to that given in relation to discretionary life sentences, with the resulting cessation of behind the scenes correspondence going up to the Home Secretary.

I should say that, as a result of a decision in your Lordships' House, the gist but not the reasons for the recommendation by the trial judge, the Lord Chief Justice and the Home Secretary, if he disagrees with them, has to be the subject matter of information to the prisoner. However, the letters are confidential and not open to the public. So those four requirements would apply.

What is the basis of the Government's resistance? It is pure convenience—perhaps I ought rather to say undiluted convenience. It arises in the following way. During the debate in Committee, the noble Baroness the Minister agreed that the views of the Lord Chief Justice cm what is the tariff, the deterrent and the retribution aspect of the sentence are taken very seriously by the Home Secretary. She also accepted that the Home Secretary places considerable value on the views of the judiciary.

In those circumstances, I cannot understand why the Government should not be delighted with this amendment. It will ensure that the views that the Home Secretary receives are better informed. The trial judge will have heard submissions and made his decision. If it is not appealed, the inference will be that it was a sensible decision. If it is appealed, the Lord Chief Justice, as he indicated on the last occasion, will preside over the appeal. The Home Secretary will have the benefit not merely of the Lord Chief Justice's decision as at the moment, but a decision, after having heard the basis of the trial judge's decision, having listened to submissions and with the advantage of having had two brother judges to consult before he gave his view. As the Home Secretary, treats the information with such seriousness, one would have thought that he would be delighted with that better information.

The Minister also conceded that there was a case for wider or broader transparency. That is exactly what the amendment provides. Once again, one might have expected a pat on the back for tabling the amendment.

So what exactly is the reason for the resistance? I indicated that it was convenience. It is convenient because the present situation gives no publicity to the judicial decision as to the correct punishment for the particular case. Where the Home Secretary disagrees, as he frequently does, and departs from the judicial decision, that is not publicised. If a transparent situation—an open situation—which one would have thought reflects very much the philosophy of today—were to prevail, it would mean that the public would be able to see the contrast between the judicial approach to sentencing and the Home Secretary's approach, with the inevitable political input that must occur from time to time. That could be inconvenient.

Therefore, I invite your Lordships to accept the amendment. It was described by Justice in its briefing material as: a modest but useful step towards justice. I emphasise that it does not affect the Home Secretary's power, which he is anxious to safeguard, to be the final decider of how long a murderer should remain in prison. I beg to move.

Lord Campbell of Alloway

My Lords, I sought to make two matters plain at Committee stage (Hansard, cols. 1475–76). First, I supported the recommendation being made in open court. But that can be done with a practice direction, without any need for legislation. I also sought time to consider the proposed appellate structure to which the noble and learned Lord referred today.

I tried to find out (col. 1480) —I am grateful to the noble and learned Lord, the Lord Chief Justice, for giving it to me—the information on which he supported the amendment. If I allowed the Chamber to believe that I supported it, such was not my intention. I have indeed considered the matter in the light of what was said at Committee stage and have come to the conclusion that this amendment, which was ha led as a modest step in the right direction, could well lead down a blind alley from which there is no logical escape.

Why is that? On the one hand, on the face of it, the amendment affirms the unique gravity of the offence of murder. That is the only foundation for the mandatory life sentence, with its own disparate sentencing regime. On the other hand, the amendment rejects such a regime designed to mark out such unique gravity from all other offences. It does so by assimilating, as the noble and learned Lord explained, the procedure applicable to the discretionary life sentences, save only as regards the Home Secretary exercising a discretion as to release.

Having had the privilege of serving on your Lordships' Select Committee on Murder and Life Imprisonment, I totally reject the concept of unique gravity. Personally, I would abolish the mandatory life sentence. But that is not to the point. What is to the point is that the amendment is flawed by an intrinsic, logical inconsistency which could render it unacceptable, irrespective of whether one wishes to retain or abolish the mandatory life sentence. It is claimed that that disparity between the respective sentencing regimes—the mandatory and discretionary life sentences—is unjustifiable, illogical and anomalous. Such is not the case. Such disparity was part and parcel of a deal reflected in Section 1(2) of the 1965 Act and but for which this Bill would not have passed this House. Such disparity was in continuance of the concept that the unique gravity of murder demanded a sentence disparate from other offences to mark the gravity of the offence.

It is that question of unique gravity—it is essentially a lay question—around which the debate on Amendment No. 1, at root, inevitably depends; the concept upon which the mandatory life sentence was introduced and founded, with its own disparate sentencing regime. This is a question which lies with lay people and does not lie within the exclusive province of any lawyer, however eminent he may be.

The cleavage of opinion on whether or not murder is a crime of unique gravity bedevils this debate. On that point, the majority of your Lordships and the Select Committee of your Lordships' House have already said that it is not a unique crime of that order. The minority of your Lordships' House, the Government and another place, said that it is. That was the assumption made in 1965 when the mandatory death sentence was abolished by the same statute which introduced the mandatory life sentence. So it is and has remained to this day. With regard to the suggested anomaly between the sentencing regimes, at Committee stage the noble and learned Lord, Lord Lowry, said, 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".— [Official Report, 8/6/95; col. 1481.]

As to the compromise which enabled the Bill to pass, to which I referred at Committee stage, my understanding is based on the information given to me by the noble Lord, Lord Shepherd—who I am relieved to see in his place—who, as Government Chief Whip, was present when that deal was made. He will correct me if I am wrong, but I believe that it was founded upon the concept of unique gravity which demanded a disparate sentencing regime to mark the gravity of the offence, and that recommendations from the judiciary could be made as to the minimum term to be served before release for the consideration of the Home Secretary in the exercise of his unfettered discretion as to the date of release. I hope I have that right.

3.30 p.m.

Lord Shepherd

My Lords, the noble Lord is right in one respect. However, I do not believe, when the deal was done as he said, that any of those other matters applied in any of the minds of those involved in the discussions.

As it has been raised, the House may think it helpful for me to explain. As your Lordships know, it was a Private Member's Bill and the Government of the day has no role in the way in which Private Members' Bills are taken through this House. There were splits in all the parties. There was a vote in the House of Commons with Conservatives, Labour Members and Liberals voting together both in support and against the Bill. The situation was similar in this Chamber.

It was at the end when there was a real risk that the Bill could be lost—it related to the anxiety that a life sentence was not severe enough; that it would not be long enough in terms of a prisoner who had committed a specifically vile sort of crime—that a deal was reached between the opponents and proposers of the Bill. The only part that the Government played in that matter was to provide the amendment to meet the wishes of both parties. Therefore, it was not a political deal. We provided services only and never considered the ramifications of what was being proposed.

Lord Campbell of Alloway

My Lords, I thank the noble Lord. As regards the recommendations, I have dealt with the first one and accept it. It was also confirmed by the noble and learned Lord the Lord Chief Justice that the effect of the amendment would be that the Home Secretary would not continue, in accordance with common practice, to obtain a letter from the Lord Chief Justice, but that practice directions along those lines would be issued.

It was claimedb—not by the Lord Chief Justice—that this amendment would enable the Court of Appeal (Criminal Division) to give better advice to the Home Secretary. But it is plain beyond peradventure that the Home Secretary rejects that and would wish the current practice to continue. The Home Secretary would want at least two judicial views in every case as only one part of the tariff-setting process which goes far wider than the normal sentencing functions and takes into account broad considerations of a public character.

The letter from the Lord Chief Justice is confidential. Only the gist of it is disclosed to the prisoner and it is clearly undesirable that the letter should be in the public domain. That would inhibit the quality and value of the advice tendered. It may well affect the prisoner and his family to their detriment. It would be inconsistent with the due exercise of an unfettered discretion as to release on the part of the Home Secretary, who is entitled to seek such advice in such manner as he pleases.

As regards the exercise of discretion, it is claimed (at col. 1487 of Hansard) by the noble and learned Lord, Lord Ackner, that the authority of the Court of Appeal, (Criminal Division), would induce the Home Secretary to accept the recommendations of the court as to release, otherwise he would be exposing himself to public criticism. Although it is to be doubted whether any Home Secretary would be so influenced, the fact that he could be is another reason for rejecting the amendment.

Lord Taylor of Gosforth

My Lords, the rationale behind the amendment has already been explained, with his customary lucidity, by my noble and learned friend Lord Ackner. It was thoroughly debated at Committee stage. I hope today that we may have the benefit of the views (and the votes) of some of those who were excluded from taking part on a previous occasion—members of the judicial committee—because of the pending case to which reference has been made. I do not propose to repeat what I said on 8th June. I rise merely to make some simple points, not so much to explain what the amendment will do, as to clarify what it will not do, which seems to have been a matter of concern on the previous occasion. The debate on that occasion showed that there was some confusion on this score, not least, if I may say so with respect, on the Government Front Bench.

First, the amendment would not affect the imposition of a mandatory life sentence for murder. As we all know, that subject is an emotive one about which many have strong views, both in this House and in another place, where a Bill with Cross-Bench sponsorship was introduced only last week. It is also under consideration by a Select Committee and it is a subject which creates a great deal of interest and varying views countrywide. This has nothing to do with the subject which we are debating this afternoon and I entirely reject the suggestion made by the noble Baroness the Minister, when responding to the debate in Committee, that those noble Lords proposing this amendment were trying to use the debates on the Bill to open up such wider arguments. The amendment assumes that the mandatory life sentence for murder remains. Its aim is to administer the operation of that mandatory life sentence more fairly, more effectively and more openly.

Secondly, the amendment would not affect the powers or responsibilities of the Home Secretary ultimately to specify the length of the penal element of the sentence—that is to say, the length of time which the prisoner must serve for the purposes of retribution and deterrence. These would continue. And in exercising his powers the Home Secretary could still take such additional advice from his officials and from experts as he needed once the judicial process had run its course. He would also continue to be required to consider representations made by the prisoner himself.

Nor do I believe that the amendment involves a breach of what the noble Baroness described as "good legislative practice" by relying upon a practice direction to implement its desired effect. Much of our primary legislation depends upon subsequent administrative action or upon the making of subordinate legislation of one kind or another, and Ministers frequently give undertakings as to the way statutory powers will be exercised. Perhaps even more relevantly, one of the noble Baroness's former colleagues at the Home Office, Mrs. Angela Rumbold, had no hesitation, when moving what is now Section 34 of the 1991 Act in another place, in making undertakings about how that section would work in practice. Those undertakings could be fulfilled only by the Lord Chief Justice making a practice direction. which I did.

So what actually is the change? The change is that we would dispense with the confidential procedure whereby the trial judge and the Lord Chief Justice fill in a form behind the scenes. It would be replaced with an open system in which the trial judge would give his or her advice in public under the overarching guidance and supervision of the Court of Appeal, presided over by the Lord Chief Justice. The noble Baroness the Minister was very kind to say to the Committee that the Home Secretary placed considerable value on the views of the Lord Chief Justice when making his decision on the tariff and would continue to seek the views of the holder of my office even if the amendment were made. I hesitate to say the number of occasions on which he departs from the advice. But however many that may be, he apparently finds it valuable. With respect, I have to say that it would be quite unnecessary for him to seek the views of the Lord Chief Justice. And may I make it clear that when I give my views under the present convention I have very little information. I have not been at the trial, I do not have the benefit of hearing representations and I have only a brief report from the trial judge.

Under the system envisaged by the amendment the Lord Chief Justice of the day would retain a central role in the system. He would preside over constitutions of the court when appeals were made against a judicial recommendation and so would he responsible, with the assistance of the two other judges sitting with him, for establishing clear and open criteria, according to which other trial judges would be able to tender their advice in the generality of cases after hearing representations from counsel for each side and in the full face of the public and the media. I would have expected an Administration who profess their support for open government to welcome such a move towards greater transparency. The amendment certainly has the support of every judge with whom I have discussed it.

I would like briefly to comment on the observations which have been made by the noble Lord, Lord Campbell of Alloway. I frankly find difficulty in understanding his position. He states that he would personally be against retention of the mandatory life sentence and yet he says that, while it exists, there must be some distinction between the mandatory life sentence and the discretionary life sentence. What is that distinction? It is the miserable distinction that in the more important matter where murder has been committed what is decided is decided behind the scenes, whereas it has to be up front in relation to discretionary life sentences. I personally do not find that a distinction which can be described as anything other than dismal.

But, furthermore, he seeks to justify this stance by referring to what he called a deal that was made at the time when the death penalty was abolished. In so far as a deal was made—I am grateful for the remarks which have fallen from the noble Lord, Lord Shepherd, as to what happened at that time—it was that there would be a mandatory life sentence in place of the death penalty; not anything to do with the mechanics of how that sentence would he worked out or what advice would be given, whether openly or behind the scenes. So there is nothing in this amendment which would fall foul of any deal that was done at that time.

Furthermore, a great deal of water has flowed under the bridge since the time when that change was made. Attitudes nowadays are vastly different. They are predominantly in favour of openness, whenever openness can be achieved. In my view, it can be achieved, and I would support the amendment which has been proposed by my noble and learned friend Lord Ackner.

3.45 p.m.

Lord Houghton of Sowerby

My Lords, if I may say so with respect, this debate may be improved a little if we have the voice of a layman. There is something to be said for murderers. We heard very little in the debate last time and we have heard very little in the debate today on the human side of the condition of those who receive a life sentence for their wicked act of murder. If public opinion is that a murderer should surrender his own life and that the death penalty should be imposed as a mandatory sentence of the court, that is one thing. You just kill him and there is no further argument. But the public were not entirely satisfied with the mandatory nature of the death sentence. So there was a fallback in favour of deserving cases, which was the prerogative of the Crown to reprieve a person convicted of murder and convert his sentence into one of life imprisonment.

What the public rarely considers in this matter is what life means in a long period of imprisonment. Is it life after death, or is it life before then, or is it not life at all? That is what the argument is about. I am against the mandatory sentence of life imprisonment. It is cruel and inhumane and has no useful purpose whatever. In my view the argument would end to a large extent if this amendment were carried. As regards the mandatory life sentence, public opinion has caused the recommendations of judges as to how long a convicted person shall serve, partly for retribution and partly as a deterrent. So we are modifying our approach to the sentence of life imprisonment.

If we are to adopt the proposal in this amendment, which I am heartily in favour of, we shall then have another reserve position as regards the use of the sentence for this crime—that is to say, the recommendation of the trial judge as to how long, in his opinion, the convicted prisoner should remain in prison before he is considered for parole. At present I believe that the secrecy which surrounds the recommendations of the trial judge and the supplementary recommendations of the Lord Chief Justice, is an offence against the onus of the administration of justice. If one is to condemn a person to life imprisonment one should consider what sort of life anyone is entitled to live, even in prison. The public are not entitled to shut their eyes to the consequences of their own prejudices in a matter of human affairs. Therefore, when a sentence of life imprisonment is automatically imposed in particular cases, we have to consider what we want to do to the life of that person.

Most people believe that life imprisonment does not mean life, and neither should it. But it is a sham if it does not. That is where the whole system needs radical reconsideration. We do not send people to prison for life and it would be a downright shame if we did.

In my constituency I had three or four cases of murder. The prisoners went either to Armley gaol in Leeds or to Wakefield. I heard their stories and I went to the Home Secretary. I had grievous cases where the sentence of death would have been a crime in itself. A sentence of life imprisonment for a young man of 23 who slew his child in a fit of passion, having been driven mad at the behaviour of both his wife and child, would have been a very severe penalty to impose on him.

I asked the Home Secretary what life sentences were supposed to do. They were supposed to express the disapproval of society of the heinous crime of murder. But so what. Is there no hope then? Is anything justified if it is done that way? It is very difficult to rationalise emotional thought in the approach to things of this nature. The noble and learned Lord, Lord Ackner, referred to the reply given by the noble Baroness the Minister to the debate on the last occasion, conceding this and that about the merits of what was being proposed, but still the Government were against it.

The Government are against it in this case because of politics. Their policy on crime is to increase the severity of punishment. They believe that the more severe and harsh the law the greater the deterrent will be to that crime. On that basis we should still be hanging people for sheep stealing. I believe that there is no truth either in experience or in logic why such a severe sentence should deter people when, in many cases, it is not within their rational capacity to stop what they are doing. That is one of the basic difficulties with murder. It does not matter what one does to many people convicted of murder because they cannot stop themselves. We are human beings. We have passions, emotions, sadism, aggression and a demand for retribution and retaliation. We are a mixed-up lot intellectually and we cannot always steer the course of reason and sanity. We must make allowances. If we send people to prison for long periods we must give them some hope that they will return to a life of liberty and live out their lives in a most useful way. I support the amendment.

I finish by saying that mandatory sentences are wrong in principle. After one has decided what penalties an offence may have, the courts should be so constituted as to enable the law to be administered with discretion, humanity and, if necessary, with mercy. But at present we have none of those things. in all the circumstances I say that it is politics which is behind this just as much as it is politics behind the Government's refusal to remove the mandatory sentence on pit-bull terriers. I wish that some of the noble Lords who have spoken had come to my aid in 1991 when the Government removed all discretion from the magistrates' courts in England and Wales as regards the sentence to be imposed on a dangerous dog under the Act's definition of what that is.

I must get these little points in because they are relevant to the main argument and important in themselves. Therefore, I wholly support the amendment.

I hope that the implication is—and these are my final words—that we are on the way to abandoning the mandatory life sentence altogether.

Lord Windlesham

My Lords, we have listened to a remarkable and deeply-felt speech by the noble Lord, Lord Houghton. It is heartening to hear the traditional values of penal reform so eloquently expressed.

I have been interested in the subject of the penalty for murder for many years now. I have sat on two committees. There was your Lordships' Select Committee on which I served with my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Ackner. More recently I served on another committee under the chairmanship of the noble and learned Lord Lane, who is present for the debate this afternoon.

Illogicalities and anomalies have arisen in recent years—I stress it is only in recent years—between the mandatory penalty for murder and the discretionary life sentence which covers other forms of homicide falling short of murder, but not necessarily less culpable, and by no means carrying less risk to the public. Some of the diminished responsibility cases, with a conviction for manslaughter resulting in life sentences, carry the greatest risk to the public. Sentencing decisions are exceptionally difficult in that particular field.

One of the problems of discussing this issue is that it has become so extraordinarily complex that there are very few people concerned with public policy and administration who understand the intricacies of life sentences of imprisonment. A good proportion of those who do are present in this Chamber this afternoon.

What we have seen in recent years—I say this to my noble friend at the Home Office since I occupied the same office as she does 25 years ago—is a gradual whittling away of the Home Secretary's decision to decide on the period of time to be spent in custody by an offender sentenced to life imprisonment.

Let us consider discretionary life sentences. I should say that the distinction between discretionary and mandatory sentences only goes back to 1983. I was then chairman of a committee which I believe that the noble Lord, Lord Allen of Abbeydale, who is in his place in the Chamber today, may have had something to do with setting up. It was a joint committee between the Parole Board and the Home Office which reviewed the cases of all life-sentence prisoners. It did not make any difference whether the sentence was for murder or for manslaughter: all cases were reviewed on their merits. Recommendations were made to the Home Secretary as to when it was regarded as safe to release a particular prisoner. It was only in 1983 that the distinction came into existence. Moreover, subject to correction from the noble and learned Lord, Lord Lane, I believe that only from that date did the practice of the Lord Chief Justice making his recommendations in private on what judicial recommendation had been made by the trial judge also come into effect. I am glad to have the affirmation of the noble and learned Lord on that point.

We have now arrived at a situation where discretionary life sentences are governed by judicial procedures. The decision is taken in open court; the defendant is present, has been seen in court by the trial judge and is represented by counsel. The sentence is subject, with leave of the Court of Appeal, to review on appeal. That is not so with mandatory life sentences. We are aware that the description is a misnomer in that the mandatory life sentence is not a compulsory sentence for life. It is an indeterminate sentence, containing within it a fixed term. How is that fixed term set? It is set by the recommendation of the trial judge, subject to review, as we have just heard from the noble and learned Lord, Lord Taylor, by the Lord Chief Justice who has little more new information available to him. Indeed, all he can rely on is the fact that he sees a number of such cases. Therefore, he can introduce an element of consistency if he feels that the recommendation is out of line. There is very little else that he can do. Then the minimum term to be served is decided in private by a Minister who has not seen the defendant, who is not aware of the particularities of the case, and who may have other, possibly political, considerations in mind.

For many years it was highly unusual for the Home Secretary not to accept, or to vary, the judicial tariff. But that practice began to change some years ago and now we know, through Answers to parliamentary Questions and judicial reviews in the courts, that the Home Secretary may and quite frequently does, alter the tariff if he feels that circumstances justify it.

We are now looking at just one more step in a laborious process, which is what it has been over the years as a result of decisions taken in this House on the Criminal Justice Act 1991 and in Strasbourg cases at the same time which led to separate handling for discretionary life sentence cases. There have been further cases involving judicial review, many of which have arisen as a result of the decisions of the Court of Appeal and in some cases of the House of Lords.

We are moving bit by bit to a new situation. So long as we have a fixed term within the indeterminate sentence—the minimum period of time to be spent in custody by the convicted offender—that is a sentence. What we are looking at today is just one more step, not a large step, towards a process of fairer justice which would have an end result which it is hard to deny. With all the strength at my command, I support the case put forward by my noble and learned friend Lord Ackner.

4 p.m.

Lord Lane

My Lords, perhaps I may make one or two remarks in support of the amendment. My only excuse for rising to speak at all is that, as my noble friend Lord Windlesham has just indicated, over my last few years in the position of Lord Chief Justice I had the task of considering upwards of 300 life-sentence cases every year—some of them mandatory and some of them discretionary—and of sending my recommendations on a pro forma to the Home Secretary.

It is all too easy to overlook the object of the exercise and the object of all these procedures. That object is not to preserve the powers of the Home Secretary or political powers; it is to do justice, as far as possible. to the prisoner, on the one hand, and to try, on the other hand, to ensure—again as far as possible—the safety of the public.

In order to do justice, there are certain fundamental, simple requirements. The first is that the facts should be ascertained and known to the person who is determining the sentence. At present the trial judge is the only person who has a full command of the facts and even he does not have it in every case. The Lord Chief Justice certainly does not have a full account of the facts. He has a précis—or used to have in my day; I do not know whether it is still the same—of the facts, and a précis only. The same goes for the Home Secretary in whose hands the matter finally comes to rest.

The second requirement is that the arguments of counsel on behalf of the prisoner should be heard by the sentencer—the prisoner's representations. One then hears the other party's argument as part of the fabric of justice. The third requirement is that there should be a right of appeal. Of course, human fallibility is to be found in sentencing as in every other aspect of our lives. Finally, justice can be done only if the matter is heard openly so that the public can see what is going on and the basis upon which the Home Secretary—the final determinant—has reached his conclusions.

Certainly those last three requirements are not fulfilled at the moment. The amendment would go at least some way towards filling the gaps, which are all too prevalent at present, in those requirements of justice. I shall not go on any longer because all the other arguments have been set out so clearly and so plainly by my noble and learned friend Lord Taylor, the noble Lord, Lord Windlesham, and indeed my noble and learned friend Lord Ackner. That is .all I need to say.

Baroness Elles

My Lords, I should like first to thank the noble and learned Lord, Lord Ackner, for setting out so clearly the purpose of the amendment and also other noble and learned Lords for setting out both what the amendment is intended not to do and the principles upon which it should be adopted. Not having ever practised at the criminal bar, I find myself in a rather extraordinary position today. I have observed with some amazement the practice of some learned judges who have carried on for 30 years since the 1965 Act in a manner in which some of them now consider to be unprincipled, unjust and unfair. Therefore, I wonder whether the amendment proposed is one which would remedy the defects which clearly exist in this case.

The noble Lord, Lord Houghton of Sowerby, to whom I know we all listen with the greatest respect, was asking for the abolition of the mandatory life sentence. I would remind him that that Act was adopted in 1965 during the period of a Labour Government. So it seems that they had time to consider the issue. I am sure that many of us in the House would like to see the mandatory life sentence as a principle abolished and to go down what might be called the slippery slope towards discretionary life sentences along the lines touched upon by my noble friend Lord Windlesham. But we are faced with the legal position that in the case of a mandatory life sentence the trial judge is giving only a recommendation. He is not making a decision.

The idea that we shall rectify that procedure by giving someone the chance to go to the Court of Appeal on a recommendation is the anomaly. It is not that the anomaly exists; we are creating an anomaly in the legal procedure. That is probably not the best way to go about the matter. Those of us who studied the classics so many years ago will remember that it was said that injustice arises when it is sought to impose equality among the unequal, just as much as injustice arises when one is imposing inequality among equals. That principle attaches to the way the amendment is being proposed. I am certain that all of us in the House wish to see justice done. We wish to see fairness. Many of us, as I say, would wish to see mandatory life sentences abolished, but I do not believe that this is the right amendment to do that. It will create more anomalies.

In conclusion, perhaps I may draw attention to the statement made by the noble and learned Lord the Lord Chief Justice in Committee (8th June, col. 1480) when he said that he 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. If we are going to introduce a practice direction, it should apply in all cases. I believe that we are once more creating a new anomaly. I suggest to my noble friend the Minister that she rejects the amendment, and that at some later stage we should look at the question of mandatory life sentences to see whether a more suitable, fairer and more just way of proceeding should be introduced.

To come to the House after 30 years of the Act being in force, the judges having carried out to the best of their ability, as we hope, justice in this country, and to tell us that there is no justice in the way it is being done is not a strong argument in favour of the amendment.

Lord Ackner

My Lords, before the noble Baroness sits down, she referred to what has gone on over the past 40 years. I think she has overlooked the fact that the purpose of the amendment is to iron out the anomalies between the discretionary life sentence and the mandatory life sentence. That anomaly has arisen only since the Criminal Justice Act 1991, and more so since 1993 when the practice direction required judges, save in exceptional circumstances, to exercise their powers under Section 34; so that in truth and in fact the anomalous position which we are seeking to alter has been in existence only three years.

Baroness Elles

My Lords, I am grateful to the noble and learned Lord for making mat statement. My point is that it is the mandatory life sentence that has been in force since 1965. It is that which has in fact created the anomalous position in which noble Lords now find themselves.

Baroness Mallalieu

My Lords, I shall briefly add my voice to those who support the amendment. It is of paramount importance that justice should be done in public. To make decisions behind closed doors and in private about how long a convicted murderer should serve is both unjust to him and, more important, unjust to the family and friends of his victim.

The anomaly which undoubtedly exists today between a mandatory and a discretionary life sentence is plainly a nonsense. I am surprised that the Government do not grasp this opportunity provided by the amendment to remedy that anomaly.

4.15 p.m.

Lord Lowry

My Lords, I remain strongly in favour of the amendment. Your Lordships now have a better idea than before its consideration in Committee of the grounds upon which the amendment is resisted. I wish to refer to those grounds shortly. Perhaps initially I may quickly summarise the points I made on an earlier occasion. First, under the proposal, if a recommendation is made in court, the accused hears it and will be able to appeal. If he does not that fact in itself is a guide to the Home Secretary. If he does appeal, the Court of Appeal will hear submissions, as with an appeal against sentence, and give its decision, with reasons, in open court. That procedure must be of great assistance to the Home Secretary.

At present, if the judge does not make a recommendation at the trial, he may die or retire before giving the advice. In every case, of course, the Lord Chief Justice has a duty to advise. He considers the case on paper, without the benefit of argument—here I rely on a regrettably extensive experience in another jurisdiction—and he has little alternative, unless he considers that the first recommendation is right out of line, but to confirm that recommendation, if one has been given. That is not helpful.

My second point was that a recommendation, although not part of the sentence, is an important part of the administration of justice, and should be treated as such, and justice must not only be done but be seen to be done. It is increasingly accepted that that principle applies also to executive actions.

Thirdly, the Home Secretary's power and executive discretion remain intact. He will continue to have the last word, but that last word will be pronounced with the benefit of much more helpful advice than heretofore.

What is said against my noble and learned friend's apparently reasonable proposal? I hope that the Minister will allow me to say that your Lordships all agree that she invariably treats with good sense and moderation every subject on which she touches, but I must respectfully suggest that on this point she has been given a difficult brief.

The word "anomaly" has been mentioned, but as I ventured to point out in Committee, the real anomaly is the mandatory life sentence for murder which neither the judge who pronounces it, nor the Home Secretary—or indeed the general public—contemplates being carried out save in a very exceptional case. I agree that there is an anomaly where the judge pronounces a life sentence as he must and then recommends what part of that sentence should be served. That could not have happened when the mandatory sentence was the sentence of death. Whether to commute that sentence and how long an accused whose death sentence was commuted—that is, changed into a life sentence— should stay in prison were purely executive decisions for the discussion of which in open court there could be no place.

Let me consider briefly some of the supposed objections. One is that some trial judges may not make a recommendation at the trial. My noble and learned friend the Lord Chief Justice meets that by saying that he can give a practice direction. A further objection then is that it would not be good legislative practice to pass a law which would have to depend upon a practice direction for its effectiveness. My noble and learned friend dealt thoroughly with that point. However, perhaps I may add that the further objection could easily be met by enacting a statutory provision in the same terms as the proposed practice direction.

The second point that was made was that under the present law there is room for a judicial view, including that of the Lord Chief Justice. That is true. However, the view expressed by the Court of Appeal under the new law would be infinitely more valuable. Thirdly, as a reason for preferring the present system the Minister relied earlier on the need to maintain public confidence in the system of justice. Understandably, she contemplated the possibility of occasions on which the Home Secretary would differ from the judges. I suggest that openness in the administration of justice is one of the main foundations of public confidence.

Furthermore, under the proposed law the Home Secretary will have the benefit of advice based on reasoned discussion—advice which he may be more likely to feel able to accept because it is likely to be better advice. And when he does not accept the advice, the Home Secretary is his turn can state his reasons openly. Secrecy, on the other hand, erodes confidence, and now that thanks to a ruling of your Lordships' House in its judicial capacity an accused must be told what the judicial recommendation was, discrepancies between that recommendation and the course taken by the Home Secretary behind closed doors can be publicised informally in quite a misleading and harmful way from the point of view of both the Bench and the administration.

Finally, would it not be wise for us to recall that these recommendations are made by the same judges who are already entrusted, subject to the Home Secretary's exercise of the Royal Prerogative of Mercy, with the task of fixing the length of imprisonment in cases of attempted murder, conspiracy to murder and other crimes in respect of which a life sentence can be but need not be imposed? Of course, such sentences can be considered on appeal by the Court of Appeal.

Recently my noble friend Lord Campbell of Alloway was kind to me in this Chamber. Therefore, I hope that he will not consider me churlish if I refer to his comment about the unique gravity of the offence of murder. We can probably remember without difficulty that murder is what has been called—admittedly called by me—a "result" crime. You may not intend to kill someone but if you intend seriously to injure him and he dies that is murder. Attempted murder and conspiracy to murder require the element of an intention that somebody should be killed. That sounds potentially even more serious as regards the moral obliquity.

As the noble and learned Lord the Lord Chief Justice reminded us, the amendment is based entirely on the acceptance, at least for the time being, that the mandatory life sentence, of which I very much disapprove, will continue in force. We must not be sidetracked into the argument that this is all about the mandatory life sentence; it is about the right way to go about dealing with it.

I was pleased to see the noble Lord, Lord Windlesham, and to hear what he said. He gave one Home Office view, but your Lordships will remember that the noble Lord also had considerable experience of a Home Office nature when he served in the Northern Ireland Office. That was when I first had the honour of meeting him. In view of the noble Lord's experience, it behoves us to pay great attention to him. I submit that in reality the proposed amendment can only help the Home Secretary. Therefore, I strongly support it and hope that it will be adopted.

Lord Rodgers of Quarry Bank

My Lords, on behalf of Members on these Benches, I associate myself with the amendment. Unfortunately, I was not present when the matter was discussed in Committee but I looked at the Official Report, in particular at the words of the Minister in rejecting the amendment which was then tabled. She said: Parliament has taken the view…that there should be a distinction between murder and other crimes which are subject to life sentences. That is the point at issue". However, I do not believe that was the point at issue then and clearly from our debate today it is not the point at issue now. The Minister continued: There is not only a distinction but a distinct process through which cases have to go".—[Official Report,. 8/6/95; col. 1486.] She implied that in some way the amendment interfered with that process.

It is plain that the point is narrow: it is whether the process should be secretive, as it is now, or whether it should be transparent, which is what the amendment is designed to achieve. It is unfortunate, and perhaps a reversal of the expectations of many of us, that the judiciary wishes to see change in favour of greater openness, while Ministers—the politicians—wish to retain a process that is secretive. Change will come. The only question is whether it will come today or later.

Lord Monson

My Lords, any layman who ventures into these waters does so with the greatest trepidation. Nevertheless, it would be helpful if one small but important point could be clarified. I wonder whether in winding up my noble and learned friend Lord Ackner will say whether his amendment will theoretically permit, in certain grave circumstances, the Court of Appeal to recommend an increase in the period which should be served before an individual can be released on licence, as well as permitting the court to recommend in the majority of cases that it should be reduced or left unaltered.

The Minister of State, Home Office (Baroness Blatch)

My Lords, when we last considered this new clause, many of those who spoke in its support drew particular attention to their concerns about the operation of the current tariff setting procedure. In order to ensure that there is no confusion on the point of transparency, I want to make clear how the tariff—the minimum period required for retribution and deterrence—is now set in mandatory life sentence cases.

The decision on the period to be served by a person given a mandatory life sentence for murder has been entrusted by Parliament to the Secretary of State. In relation to the penal element, or tariff, the legal position was clearly set out by the noble and learned Lord, Lord Mustill, in the Doody judgment. He said that: 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". Shortly after the trial has been completed, the trial judge completes a standard form of report to the Secretary of State. He includes a description of the offence; the issues before the court; medical considerations, if any; and factors leading to a minimum recommendation. General comments on the case and assessment of future risk are also made. Finally, he gives his view of the appropriate period for retribution and general deterrence.

The trial judge sends the report to the Lord Chief Justice for his comments, which are generally limited to the tariff recommendation. When completed the report is sent to the Secretary of State, usually within two or three weeks of conviction. The whole of this report, apart from opinions about future risk, is sent to the prisoner, together with the other papers, such as records of previous convictions, which will be put to Ministers in due course. We refer to disclosure of the gist of the judicial recommendations because that was the term used in Doody. But I would stress that, in practice, the prisoner sees everything that is relevant to the setting of tariff.

The prisoner is invited to make any representations on the judicial recommendations and the other contents of the report. But he is left in no doubt that the judicial views are advisory and that the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to the Minister, who makes the decision on tariff.

Prisoners see a copy of the report which of course includes the reasons for the recommendations on tariffs, save for any references, as I have said already, to future risk. If the prisoner is to make any meaningful representations, he must have disclosed to him the reasons for recommendations. I must tell the House that that is done.

The procedure enables the trial judge to make a recommendation on the basis of having heard all the evidence and having made an assessment of the prisoner. The Lord Chief Justice sees every case and can bring to bear his wider experience of these cases to confirm a recommendation or offer a different view if he thinks fit. My right honourable friend the Home Secretary regards that advice as very valuable. I am happy to repeat that. Indeed, one of the drawbacks to what is proposed in this amendment is that we would lose that co-ordinating element in cases where there is no appeal against the trial judge's recommendation. I shall say more about that later.

As I have indicated, the views of the judiciary are made available to the Secretary of State very soon after the trial and, unless there is an appeal outstanding, they are communicated to the prisoner who is invited to make any representations. If, after considering the judicial view and the prisoner's representations, the Secretary of State decides in the public interest that a higher tariff than that recommended is required for deterrence and retribution, the prisoner is given detailed reasons for that decision. And these reasons are, of course, open to scrutiny by the courts through judicial review.

Since the responsibility for decision on tariff lies clearly with the Secretary of State, I submit to your Lordships that this is a much more satisfactory way to proceed than by an appeal procedure which might end up in some cases with a public declaration of three levels of tariff—two advisory and one decisive. To my mind, that is a recipe for confusion for the prisoner, the public and, by no means last, the family of the victim.

The prisoner is aware of the judicial view on which he can make representations. He is told of the tariff set. If there is any departure from the judicial view, he is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot, therefore, reasonably be described as secretive or behind closed doors. We believe that it is consistent both with the need for openness and with the proper discharge of the serious responsibility which Parliament has unambiguously placed on the Secretary of State.

The amendment has been proposed on the basis that it would resolve an existing anomaly. I believe, as does my noble friend Lady Elles, that the new clause would create anomalies. There are certainly differences between the procedures in relation to mandatory and discretionary life sentences, as was pointed out by my noble friend Lord Windlesham. But differences do not constitute anomalies. Direct comparisons between the two can indeed be regarded as rather spurious. The philosophy, statutory framework and the executive practice of the two sentences are quite different as the noble and learned Lord, Lord Mustill, made clear in his speech giving the House of Lords' determination in the Doody judgment. This House may wish to bring the two sentences into closer alignment. However, as matters stand, there are very real differences between them, and deliberately so. There is no inherent unfairness because mandatory and discretionary life sentence prisoners are more readily compared with determinate sentenced prisoners sentenced for the same type of offences than to mandatory life sentence prisoners.

The noble Lord, Lord Rodgers of Quarry Bank, referred to that distinction and quoted what I said from Hansard. I believe that that is the point at issue because the point at issue is that Parliament has decided that there should be a distinction between those subjects to discretionary and mandatory life sentences. This amendment is dealing with the distinction in the process for both.

As the House knows, in the case of discretionary lifers, the judge now specifies in open court what the "relevant part" will he in the particular case. This term represents the penal element of the sentence and is set with reference to the determinate sentence which would have been imposed had it not, in the view of the trial judge, been appropriate to impose a life sentence. The relevant part is an order of the court which determines the minimum period of detention.

The Executive has no power to substitute a different order. It is therefore entirely right that the decision should be appealable. I mentioned during Committee stage that when the noble and learned Lord, Lord Lane (the then Chief Justice) confirmed that there was a right of appeal against the relevant part, he referred to the acid test being that there: was no modification, revision or alternative which could be substituted for that by the Minister".

The judicial recommendation in the case of a mandatory life sentence, on the other hand, is just that; a recommendation. It is subject to modification by the views of the Lord Chief Justice and then to the views of the Secretary of State who makes the final decision, having regard to the recommendations he has received. While the Minister gives very careful consideration to the recommendations he receives, he is not hound to accept them. The trial judge is thus no more than an adviser in the tariff setting process. It seems to us to be inappropriate to erect an appeal mechanism to deal with that advice, which in any case forms only a part of the tariff setting process.

I would emphasise again that although there is no right of appeal against the trial judge's recommendation, there is in every case a further judicial view expressed. Where there are differences in the view taken by the trial judge and that taken by the Lord Chief Justice, the reasons for the disagreement are given very careful consideration.

As I made clear during the debate on this amendment in Committee, the amendment would, on the face of it, create an anomaly. In those cases where the judge made a recommendation in open court, the prisoner would be able to make an appeal against the recommendation, whereas in those cases where the judge wrote to the Home Secretary with his recommendation, he would not.

The Lord Chief Justice has of course indicated that he would issue a practice direction to judges telling them to use their discretion to make minimum recommendations in all but the most exceptional cases. However, it is doubtful that it would be good legislative practice to pass provisions which depend on the issue of a practice direction to have a reasonable interpretation.

I appreciate that the provisions relating to discretionary life sentence prisoners were the subject of such a practice direction. However I do not see the two situations as analogous. It was made clear during the passage of the 1991 Act that the only reason that judges were not to be required to set relevant parts under Section 34 was because there could be exceptional cases where a discretionary life sentence would be passed on grounds of seriousness rather than risk and where life ought to mean life; in other words, where it would be entirely inappropriate to specify a relevant part. The practice direction issued by the Lord Chief Justice spelt out the position very clearly for judges—to avoid any possible doubt about the intention of the provision.

A further anomaly, and one which I have already touched upon briefly, is that the Lord Chief Justice has made it clear that, if a right of appeal were in place, he would no longer act independently in advising the Home Secretary on tariff lengths. Instead, he would himself sit in the Court of Appeal in any such case. This would leave the Home Secretary bereft of alternative judicial advice in all cases where there was no appeal by the prisoner against the recommendation. This might be a considerable proportion of cases—and would certainly include those cases where the judge had erred on the side of an unduly lenient recommendation. This means that precisely in those cases where it would be be patently right for the Secretary of State to consider imposing a longer tariff than that recommended, he would have no second judicial view to help him in reaching a decision.

It has been suggested that the role played by the Court of Appeal would improve the quality of advice provided to the Secretary of State. I am bound to say that I do not accept that this would be the case. I do not see what improvement is introduced if the Secretary of State is to receive only one judicial view rather than two in some cases. A number of noble Lords have made clear their support for the idea that minimum recommendations should be made in open court in every case. I do not think that it is unfair for me to point to the fact that judges have had the power for the past 30 years to make their recommendations in public. If the judges choose in future to make such recommendations in all cases because of their concerns about openness, then the Government would have no objection. However, we are happy to leave the matter to the discretion of the judiciary, and primary or secondary legislation is not required for the purpose.

If judges choose to make such recommendations in all but the most exceptional cases then, as I understand the position, there would be the opportunity for a speech in mitigation to be made before any recommendation was made. I hope therefore that I am right in saying that the new clause is not a prerequisite for any such change in procedure. If the judiciary feels strongly on the point the remedy is available to it without needing to introduce an anomalous right of appeal.

If minimum recommendations were to be made on this basis, I would see no reason to do away with the judge's report to the Home Secretary. On tariff, the report would simply summarise the points made by the judge when making his minimum recommendation in open court. However, the Lord Chief Justice would still have the opportunity to comment on tariff, and the whole would be disclosed to the prisoner for him or her to make any further representations.

As regards transparency for the prisoner, I have already outlined in considerable detail just how transparent the process is now. It is. I think, a far cry from the picture painted by the noble Baroness, Lady Mallalieu, during Committee stage of a procedure in which, as she said, decisions appear to be taken behind closed doors, with no opportunity to challenge, correct errors or persuade in any way".— [Official Report, 8/6/95; col. 1476.] I mentioned during Committee stage that the Home Affairs Select 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. As I said then, 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 carefully.

This new clause does not, as has been stressed, directly affect the Home Secretary's role in tariff setting—except in so far as it is being proposed that he should make his decisions in some, perhaps many, cases without the benefit of a second judicial view on tariff. That in itself would, I think, be undesirable. I also said during Committee stage that the new clause has potentially wider implications for the mandatory life sentence and its operation. We do not, as has been suggested, resist the amendment because the Home Secretary might find it harder to perform his role in tariff setting if the Court of Appeal had considered a case, although this might prove to be the case over time.

I know that many in this House are strongly opposed to the mandatory life sentence for murder and the role of the Executive in dealing with such prisoners. However, this amendment does not—as has been said—alter that position. Instead we believe it introduces confusion and creates anomalies for the reasons I have set out. I wish to put on record my agreement with my noble friend Lord Campbell of Alloway. I took wholly his meaning that he was for declaration in open court in these matters. I have to admit that I personally have some sympathy with that case. That was certainly what I understood his case to be.

The existence of the mandatory life sentence and the arrangements for the management of life sentence prisoners should of course be open to challenge by this House. However, this Bill is not about sentencing. The noble and learned Lord, Lord Lowry, referred to my having been given a difficult brief. I think he probably meant that it was not only a difficult brief but that it was also a bad brief. I believe in the case that I have been given to support at the Dispatch Box and I believe the case is a good one. Personally I do not believe that it is right to have a formal appeal procedure against what, at the end of the day, is a piece of advice—a recommendation and part of a process. I urge the House to accept that mandatory life sentence issues should be considered as a whole rather than legislated on piecemeal. I hope noble Lords will accept that it would not be right for this House to attempt to legislate for an appeal which touches on only a part—and not the most significant part—of the tariff setting process, and which moreover creates anomalies rather than addressing them. For all these reasons I hope that your Lordships will agree that this new clause should not be pursued.

Lord Renton

My Lords, before my noble friend sits down, I wonder whether she will kindly confirm that the Home Secretary is answerable to both Houses of Parliament for the various decisions which she has mentioned.

Baroness Blatch

My Lords, I can confirm that. I can also confirm that he is subject to judicial review which is yet another check and balance in the system.

4.45 p.m.

Lord Ackner

My Lords, he is only subject to judicial review not by way of an appeal process but if he has acted wholly irrationally in the decision which he has reached. I shall he brief. I have only a few points to make. There has been a risk of this modest amendment being diverted on the basis of re-arguing the question of the wisdom of the mandatory life sentence. This amendment neither touches nor concerns that matter at all, as the noble Baroness has frankly accepted. It leaves the Home Secretary's discretion entirely intact. He can do what he wishes. What it does do is to produce a more open system so that some of the anomalies between the two types of life sentences do not exist.

With regard to the question which was posed to me as to whether with this amendment the Court of Appeal would have the power to increase the recommendation made by the trial judge, I would have thought the answer is clearly yes. But the procedure which would be adopted would no doubt be by process of the Attorney-General seeking to move the Court of Appeal (Criminal Division) as he does in other cases where it is alleged there has been under-sentencing. That is the procedure that I would assume would occur. I hope that answers the question.

With regard to the adoption of what was said by the noble Lord, Lord Campbell of Alloway, I would only say this. He raised specifically the question about openness, and that is what determined his attitude. He asked the noble and learned Lord the Lord Chief Justice—as is stated in Hansard— 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"?— [Official Report, 8/6/95; col. 1480.] The noble Lord, Lord Campbell, was anxious that the private letter should cease. He is now supporting it. Back came the answer—again at col. 1480— 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". The noble Lord, Lord Campbell, then said—again at col. 1480— 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". That is a total U-turn, but fellow feeling makes us wondrous wise and this may be another example of a difficult brief.

I end by saying that the House has had the benefit of the noble and learned Lord the Lord Chief Justice of England and Wales saying in terms that this amendment to the process to which it is directed would make that process more "effective, more open and more fair". His submissions have been supported by a former Lord Chief Justice, the noble and learned Lord, Lord Lane, and they have also been supported by the former Lord Chief Justice of Northern Ireland, my noble and learned friend Lord Lowry. His Christian name is so well known that I almost forgot his surname. In these circumstances I have no hesitation in inviting your Lordships to prefer the course of justice to that of convenience, which are the rival contestants in this case. Accordingly, I commend the amendment to the House.

4.49 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 142; Not-Contents, 126.

Division No. 1
CONTENTS
Ackner, L. [Teller.]	Hanworth, V.
Addington, L.	Harding of Petherton, L.
Airedale, L.	Harris of Greenwich, L.
Archer of Sandwell, L.	Harrowby, E.
Ashley of Stoke, L.	Haskel, L.
Barnett, L.	Hayter, L.
Beloff, L.	Healey, L.
Blackstone, B.	Henderson of Brompton, L.
Bridge of Harwich, L.	Hilton of Eggardon, B.
Bridges, L.	Hoffmann, L.
Brightman, L.	Hollis of Heigham, B.
Bruce of Donington, L.	Holme of Cheltenham, L.
Carmichael of Kelvingrove, L.	Hood, V.
Carter, L.	Houghton of Sowerby, L.
Castle of Blackburn, B.	Howell, L.
Charteris of Amisfield, L.	Hunt of Tanworth, L.
Clifford of Chudleigh ,L.	Hylton, L.
Clinton-Davis, L.	Hylton-Foster, B.
Cocks of Hartcliffe, L.	Ilchester, E.
Craigavon, V.	Jauncey of Tullichettle, L.
Dahrendorf, L.	Jay, L.
David, B.	Jeger, B.
Dean of Thornton- le-Fylde, B.	Jenkins of Hillhead, L.
Derwent, L.	Jenkins of Putney, L.
Desai, L.	Judd, L.
Diamond, L.	Kennet, L.
Donaldson of Kingsbridge, L.	Kinloss, Ly.
Donaldson of Lymington, L.	Lane, L.
Donoughue, L.	Lester of Herne Hill, L.
Dormand of Easington, L.	Lincoln, Bp.
Elis-Thomas, L.	Lloyd of Berwick, L.
Ezra, L.	Lock wood, B.
Falkender, B.	Longford, E.
Falkland, V.	Lowry, L. [Teller.]
Farrington of Ribbleton, B.	McIntosh of Haringey, L.
Gallacher, L.	McNair, L.
Gladwin of Clee, L.	Mallalieu, B.
Glasgow, E.	Marsh, L.
Gould of Potternewton, B.	Masham of Ilton, B.
Graham of Edmonton, L.	Mason of Barnsley, L.
Gregson, L.	Mayhew, L.
Grey, E.	Merlyn-Rees, L.
Hacking, L.	Milner of Leeds, L.
Halsbury, E.	Molloy, L.
Hamwee, B.	Monkswell, L.

Monson, L.	Stedman, B.
Morris of Castle Morris, L.	Steyn, L.
Mustill, L.	Stoddart of Swindon, L.
Nelson, E.	Strabolgi, L.
Nicol, B.	Strafford, E.
Ogmore, L.	Taylor of Gosforth. L.
Oliver of Aylmerton, L.	Templeman, L.
Peston, L.	Thomas of Gwydir, L.
Plant of Highfield, L.	Thomas of Walliswood, B.
Prys-Davies, L.	Thomson of Monifieth, L.
Rathcavan, L.	Tordoff, L.
Rea, L.	Turner of Camden, B.
Redesdale, L.	Varley, L.
Richard, L.	Wallace of Coslany, L.
Rodgers of Quarry Bank, L.	Waverley, V.
Russell, E.	Weatherill, L.
Sainsbury, L.	Wedderburn of Charlton, L.
Sandwich, E.	White, B.
Seear, B.	Wigoder, L.
Sefton of Garston, L.	Williams of Crosby, B.
Shaughnessy, L.	Williams of Elvel, L.
Shepherd, L.	Williams of Mostyn, L.
Simon, V.	Windlesham, L.
Simon of Glaisdale, L.	Woolf, L.
Slynn of Hadley, L.	Wyatt of Weeford, L.
Stallard, L.	Young of Dartington, L.

NOTCONTENTS
Aberdare, L.	Fraser of Carmyllie, L.
Addison, V.	Gainford, L.
Ailsa, M.	Gardner of Parkes, B.
Aldington, L.	Goschen, V.
Allen of Abbeydale, L.	Gray of Contin, L.
Annaly, L.	Greenhill of Harrow, L.
Archer of Weston-Super-Mare, L.	Hambro, L.
	Harlech, L.
Ashbourne, L.	Harmar-Nicholls, L.
Astor, V.	Henley, L.
Balfour, E.	Hives, L.
Barber, L.	Hogg, B.
Belhaven and Stenton, L.	HolmPatrick, L.
Blaker, L.	Hothfield, L.
Blatch, B.	Howe, E.
Boardman, L.	Inglewood, L. [Teller.]
Borthwick, L.	Jenkin of Roding, L.
Boyd-Carpenter, L.	Johnston of Rockport, L.
Brabazon of Tara, L.	Kimball, L.
Braine of Wheatley, L.	Kingsland, L.
Brougham and Vaux, L.	Lane of Horsell, L.
Burnham, L.	Lauderdale, E.
Butterworth, L.	Layton, L.
Cadman, L.	Lindsay, E.
Campbell of Alloway, L.	Lindsey and Abingdon, E.
Carnock, L.	Long, V.
Carrington, L.	Lucas, L.
Chalker of Wallasey, B.	Lucas of Chilworth, L.
Chelmsford, V.	Lyell, L.
Chesham, L.	McColl of Dulwich, L.
Clanwilliam, E.	McConnell, L.
Cochrane of Cults, L.	Mackay of Ardbrecknish, L.
Cockfield, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Courtown, E.
Cranborne, V. [Lord Privy Seal.]	Macleod of Borve, B.
	Manton, L.
Cumberlege, B.	Massereene and Ferrard, V.
Davidson, V.	Melville, V.
Denham, L.	Merrivale, L.
Denton of Wakefield, B.	Mersey, V.
Dixon-Smith, L.	Miller of Hendon, B.
Ellenborough, L.	Milverton, L.
Elles, B.	Montgomery of Alamein, V.
Elton, L.	Mountevans, L.
Ferrers, E.	Mowbray and Stourton, L.
Fitt, L.	Munster, E.
Foley, L.	Murton of Lindisfarne, L.

Newall, L.	Shannon, E.
Northesk, E.	Shaw of Northstead, L.
O'Cathain, B.	Skelmersdale, L.
Onslow, E.	Skidelsky, L.
Oppenheim-Barnes, B.	Stevens of Ludgate, L.
Orkney, E.	Strange, B.
Oxfuird, V.	Strathclyde, L. [Teller.]
Park of Monmouth, B.	Strathcona and Mount Royal, L.
Pearson of Rannoch, L.
Rankeillour, L.	Sudeley, L.
Rawlings, B.	Thomas of Swynnerton, L.
Rees, L.	Trefgarne, L.
Renton, L.	Trumpington, B.
Renwick, L.	Ullswater, V.
Rodger of Earlsferry, L.	Vivian, L.
Romney, E.	Whitelaw, V.
St. Davids, V.	Wise, L.
Saltoun of Abernethy, Ly.	Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.

4.59 p.m.

Lord Bridge of Harwich moved Amendment No. 2:

After Clause 1, insert the following new clause:

("Applications to quash indictments appeals

. Where an application is made, on or before arraignment, to stay proceedings on indictment on the ground that they are an abuse of process, an appeal shall lie to the Court of Appeal (Criminal Division) from any decision of the Crown Court granting or refusing the application by leave of the Crown Court or of the Court of Appeal (Criminal Division).").

The noble and learned Lord said: My Lords, in moving the amendment, I wish to speak also to Amendment No. 3. The two amendments are alternative to each other. I shall say a few words a little later about the relatively minor differences in their practical effects. Either amendment addresses the problem which arises when a defendant to an indictment seeks a stay of proceedings on indictment on the ground that the prosecution is an abuse of the process of the court.

Far and away the most common and most significant ground on which such a stay is granted is that there has been such delay as to cause prejudice to the defendant in the conduct of the defence or to make a fair trial impossible. As your Lordships know, in criminal trials on indictment there is no applicable statute of limitations. Therefore it is only the exercise of this abuse of process jurisdiction in appropriate cases which provides any safeguard to the citizen against being unreasonably prosecuted for something which happened a long time ago.

Since the issue raised when such a stay is sought goes to the fairness of the trial, the question which has to be determined is always a serious one, often a difficult one. The judge will often have to weigh in the balance different and conflicting considerations. He will normally hold a preliminary hearing and decide the issue whether or not to grant a stay. The law used to be that whichever way the decision went, it could be challenged by way of judicial review. But that law has now been reversed and it is to that situation that my amendments are addressed.

Perhaps I may explain in a few words how that situation has arisen. The jurisdiction of the Divisional Court by way of judicial review was first invoked on an application for judicial review of a judge's refusal to grant a stay of proceedings on indictment in a case called Randle in 1990. Your Lordships may remember the case. It was the case of the two men who in the late 1980s had had published a book describing how they had engineered the escape of the notorious spy, George Blake, from prison back in the 1960s. Perhaps not surprisingly, they then found themselves in the dock at the Old Bailey. But they made an application saying that to prosecute them after so many years would be an abuse of the process of court. The trial judge refused it.

They then obtained leave to seek judicial review. A distinguished Divisional Court was presided over, if I remember, by my noble and learned friend Lord Lloyd of Berwick—Lord Justice Lloyd, as he then was. No, I have gone a step too far. It was not my noble and learned friend Lord Lloyd who presided over Randle. It was Lord Justice Watkins. I am so sorry.

In 1990, the court held in Randle that it had jurisdiction to entertain the application for judicial review. But on the merits it was refused. Therefore it was that case which for the period of the next three years established the law that a decision either way by a judge of the Crown Court to grant or withhold a stay of proceedings on this ground was subject to judicial review.

It is three years later that we come to the case involving my noble and learned friend Lord Lloyd of Berwick. It was a case called Ashton. It was a case of conspiracy. It had taken some considerable period of time to identify all the conspirators and to assemble the evidence against them. When an application was made to stay the proceedings on the indictment against the conspirators on the ground that the delay amounted to an abuse, the circuit judge was persuaded to grant a stay. This time it was the Director of Public Prosecutions who exercised the right to seek an application for judicial review against that decision. This time it was my noble and learned friend Lord Lloyd, presiding in the Divisional Court, who said that the judge's decision had been clearly and demonstrably wrong and overturned it.

It was then that the matter came before your Lordships' House on appeal, not on the merits but on the technical issue of the jurisdiction of the Crown Court to entertain an application for judicial review in those circumstances. The governing statute was, and indeed presently is, Section 29(3) of the Supreme Court Act 1981. That provision in terms excludes the jurisdiction to grant judicial review in relation to any decision made by the Crown Court, in matters relating to trial on indictment". In your Lordships' House—I was a party to the decision—faced with that clear language we felt obliged to decide, and indeed when the matter came to your Lordships' House the DPP felt obliged to concede, that a decision granting or refusing a stay of proceedings as an abuse of process was a decision relating to trial on indictment. That decision was given in February 1993. It was, it seems to me, clearly right as a matter of the construction of Section 29(3). However, it had most unfortunate consequences. The first and obvious one was that the conspirators, if such they were, went free and there was absolutely nothing that the Crown could do about it. In my submission, that is an unsatisfactory state of the law and one which one or other of my amendments seeks to remedy.

However, I invite your Lordships to consider separately the position of the Crown when a stay is wrongly granted, on the one hand, and, on the other, the position of defendants when a stay is said to have been wrongly refused. To give either a right of appeal or to restore a right to seek judicial review when the Crown wishes to do so upon the grant of a stay by the Crown Court judge who is alleged to have got the matter wrong would be, in my submission, entirely in line with the modem approach to conferring an appellate jurisdiction on the court to remedy errors which have operated unjustly and wrongly in favour of the defendant.

If a judge now misdirects a jury and it wrongly convicts, the Court of Appeal is not obliged simply to allow an appeal. It may also order a retrial. If a prisoner is now inadequately sentenced, the Attorney-General may invite the Court of Appeal to increase the sentence. Of course, it is true that if a defendant is wrongly acquitted by a jury following an unduly favourable direction given by the judge in his favour, then all that can happen is that an Attorney-General's reference can be brought in order to correct the error of law but the defendant cannot be retried. I apprehend that that is because of our deeply rooted sense that once there has been an acquittal by jury, that must be the end of the matter. However, I cannot see any possible ground on which anyone could resist the proposition that when a judge has made a total error in granting a stay of proceedings on indictment, where no such stay should have been granted, the decision ought to be open to correction by a higher court.

I emphasise that leave would he required in either case. I anticipate that it is only when we come to the effect of a defendant being given the right to seek leave, that it will be said that no such right should be granted. A defendant who unsuccessfully seeks a stay and who is eventually convicted by the jury then has his right of appeal. As I understand it, the whole ground on which either amendment will be resisted is that it would introduce an unnecessary element of delay.

There are two scenarios to be considered. First, it may be said that if the jurisdiction were conferred on the court some defendants would exploit it for the purposes of delay. That presupposes that applications for leave either to seek judicial review or to appeal, as the case may be, when the judge had refused a stay, would be made purely for the purposes of delay. That in turn presupposes counsel acting in an irresponsible way. I trust and believe that that would happen only in the rarest cases, but when it happened leave would clearly be refused and the delay need only be minimal.

The more serious question arises in relation to the case where there is an arguable issue as to whether the delay has been such as to preclude a fair trial. My primary submission to your Lordships in those circumstances is that if in truth no fair trial is possible, the justice of the case requires that the defendant should not have to undergo the trauma of standing trial. But even if that is not accepted, one must look at the balance of advantage in relation to the two further possibilities that arise. The possibilities which arise when a seriously arguable case is brought before the court and the court is asked to give leave either to appeal or for an application for review, are these. The first is where leave is granted and the appeal is eventually dismissed. I have to accept that in those circumstances some perhaps quite substantial delay will occur which would not have occurred if the jurisdiction had not been conferred on the court.

On the other hand, we also must consider the second case where leave is granted and the appeal is allowed. In the nature of the case, long delayed prosecutions are liable to generate long trials. So whatever the disadvantage in the case where leave is granted and an appeal is eventually dismissed so that the trial proceeds, I submit it is to a significant measure offset by the advantage that would be gained in the case where the appeal is allowed. At the price of perhaps one, two or three days' hearing in the Court of Appeal or the Divisional Court, the time and costs involved in a trial perhaps lasting for many weeks will be saved.

Judges are fallible. I should be the first to recognise that they are fallible at every level of the judicial hierarchy. However, I like to think that the nearer one gets to the apex, the less the possibility of error. We are considering decisions of great importance which will be made on some, perhaps many occasions by the lowest—I use the word in no pejorative sense—tiers of the judicial hierarchy, the assistant recorders and recorders. I submit that it cannot be right that a decision on such an important matter, made by a judge of that standing, should be beyond challenge.

I am sorry to have taken so long but I shall conclude with a few words on the difference in effect between the two alternative amendments which I advance. Leave would be required in both. If the first amendment were approved, leave could be given by the judge in the Crown Court as well as by the Court of Appeal (Criminal Division). In the second amendment, it could only be given by the Divisional Court. In the Court of Appeal, the case would come before three judges, in the Divisional Court it might come before two or three. In either case, the court would be presided over, if not by the Lord Chief Justice then by a Lord Justice of Appeal. There is a theoretical difference in the scope of the challenge and the grounds which could be advanced. However, in the circumstances I believe that it would not be a practical difference. Theoretically, the Court of Appeal can allow appeals on wider grounds than the Divisional Court can allow judicial review. But here, having regard to the nature of the decision made by a judge granting or refusing a stay of proceedings on indictment, it seems to me that either the judge would have made an error of law or he would not. If he did, it would enable the higher court to interfere in all cases. Or he may have unreasonably exercised a discretion which again would allow the higher court of both characters to interfere.

The reason I put the alternative amendment down is that it puts the law back to where it was and where it appeared to be quite happy for three years before the decision in Ashton. My belief is that since it would undoubtedly be an application relating to trial on indictment, an interlocutory application, the logical course is to grant a specific right of appeal to the Court of Appeal (Criminal Division) exercisable only with leave in the special circumstances which arise in the case which the amendments address. I beg to move.

Lord Campbell of Alloway

My Lords, there is little I wish to say in support of the amendment and in amplification of what the noble and learned Lord has just said. I am grateful to him for moving it. As some noble Lords may know, the origins were way back in the debates on the War Crimes Bill when the question arose that in every prosecution the application would be made if the indictment were laid. Undertakings were given that the law would remain as it has always been. I believe that my noble friend Lord Ferrers gave the undertakings that the accused would be able to apply. However, it would only be after conviction and after a long stayed trial. Therefore, the point was taken on a supplementary War Crimes Bill: ought there not to be a direct access to the Court of Appeal? After all, one avoids all the expense, it was unfair to the accused that he should be put in that position and it was merely importing the procedure from north of the Border where substantially the same principle applies as is proposed in Amendment No. 2.

Then, very properly, the noble and learned Lord, Lord Bridge, as regards this amendment, took up the point, "What about the Crown?". Noble Lords may think that the noble and learned Lord gave an authoritative and most interesting dissertation as to the problems of the Crown. These were remedied by the noble and learned Lord, Lord Lloyd of Berwick, but that had to be of temporary duration in the course of the interpretation of the Act. All that does not matter. What matters is that noble Lords should appreciate that the law is in the state where something ought to be done about it to put it back into the state where it could operate reasonably as between the Crown and the defence perfectly fairly without any form of abuse. If leave is sought, that is an effective safeguard against abuse. In my experience as an advocate, it is much more difficult to get leave out of the Court of Appeal than it is to win. I do not know why, but it seems that the standard demanded is very high. I mention that quite openly because my noble friend the Minister imagines, I truly believe, that even if this amendment contained the words "with leave", it would open up an avenue of delay and abuse. It would not.

The noble and learned Lord, Lord Bridge, made the point that, after all, a recorder—somebody like myself before I became too old to do it—or an assistant recorder, is a sort of qualitative judge who makes these decisions. The noble and learned Lord says that he hopes that the higher up the mountain one goes towards the apex, the less fallible one becomes. The answer to that is that once you are at the apex, there is nobody to tell you that you are fallible. So one can never really satisfy that point.

I do not want to take up the time of the House. I am very grateful to the noble and learned Lord, Lord Ackner, for having consented to put his name to this amendment. If my noble friend the Minister cannot give us any accommodation at all, on the basis of the reasoned argument advanced I hope that the noble and learned Lord, Lord Bridge, may consider whether to take the opinion of the House.

Lord Lowry

My Lords, it seems a shame that your Lordships should have to put up with me twice in one afternoon, especially with the Test Match in progress. I rise to support the proposed amendment. My main, if not only, reason for speaking is that, of the two amendments, I much prefer the straight appeal, both on its merits and for a procedural reason which may not occur to all noble Lords.

This is the kind of amendment which, if it is adopted, would be enacted in Northern Ireland as well, where the procedure is exactly similar. The Crown Court in Northern Ireland is part of the Supreme Court. There is no provision there—and I certainly do not wish to see it introduced—for judicial review to go to the Crown Court. The main reason is that appeals from the magistrates' court are heard by the county court in Northern Ireland, and therefore it was not necessary to have a provision, as it was in this jurisdiction, so that the prerogative remedies of judicial review could go to the Crown Court in England despite its being part of the Supreme Court. I shall not go into detail, but that is one important reason why, if the amendment commends itself, I hope noble Lords will prefer Amendment No. 2 to Amendment No. 3.

Lord Ackner

My Lords, when this matter came before the House on 8th June, in a short and characteristic intervention I suggested that if leave was an obligatory requirement, then the anxiety about abuse and delay ought to be very largely mitigated. I am delighted to see that leave is now part of what is suggested in Amendment No. 2.

Another way of dealing with delay is, if and when leave is granted, that the application is expedited. That in itself will hurry along the proceedings. Otherwise we face the prospects of long trials going on and on and ultimately proving to be quite unnecessary because at an earlier stage a possible attempt to knock the whole proceedings out was not available. Those are my reasons for supporting the amendment.

Baroness Blatch

My Lords, the first of these new clauses would provide a right of appeal to either party against a decision of the Crown Court either to grant or refuse an application to stay proceedings on the grounds of abuse of process. At present there is no such right of appeal, although it is open to the defence to challenge a decision in the Crown Court on appeal to the Court of Appeal against conviction. There is no means of redress for the prosecution. The second new clause would make decisions on applications to stay proceedings subject to judicial review.

Until 1993 it was thought possible for both parties to seek judicial review of such a decision. However, in the case of Ashton, the House of Lords ruled that the High Court did not have jurisdiction to review those decisions as they were matters, relating to a trial on indictment". Both new clauses seek to achieve the same effect, although by a different means.

I can see the argument for providing a means of challenging decisions on applications to stay proceedings, but I remain convinced that the implications for the administration of justice in general outweigh the benefits that might result in a small number of cases. An extra stage would be added into the process, further delaying the trial. It might be open to exploitation by the defence, who could use such appeals as a delaying tactic. I do not believe that adding a leave requirement would negate these adverse effects. Indeed, if leave to appeal were required from the Court of Appeal, yet another hearing would be needed to consider the application for leave. The trial would still be delayed even if the application was worthless. Such delays are particularly undesirable where the case has already taken a considerable length of time to reach court.

An application to stay proceedings could be made at any time until arraignment. The length of time between arraignment and the start of the trial varies. In some cases they can start at the same time. If they arc scheduled to start together and an application is made to stay proceedings, that will be heard in the absence of the jury and the trial will then proceed—or not, as the case may be. If there is to be an appeal against the decision of the trial judge, that will inevitably delay the start of the trial. The proceedings will then have to be adjourned while a separate, and higher, court considers the appeal. Further delays are undesirable in principle, and particularly when the prosecution itself has been delayed.

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. 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. That, together with the consideration given by the trial judge to the question, on an application, whether a fair trial is possible, seems to us to provide 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 the trials.

In the light of those objections, I hope that the noble and learned Lord will withdraw the new clauses. But I noted how strongly they were presented to the House. Therefore, I await the response with bated breath.

Lord Bridge of Harwich

My Lords, I am a little surprised that the Minister did not feel able to go a little further than saying that it was at least arguable that it would be beneficial to the Crown to have a right of appeal. I cannot see any conceivable argument against it. One could say that traditionally the Crown has not been able to appeal against acquittals. I accept that in the case of acquittals by jury. But acquittal by a judge on a wholly erroneous view of the law ought to be subject to correction. I have yet to hear anyone suggest any opposition to that.

I have accepted that there would be some delay, but with compensating gains where appeal against refusal of a grant was successful. But as regards delay in giving a right of appeal to the defendants, the significant part of this debate, as in one of Sherlock Holmes' famous cases, was the dog which did not bark. This jurisdiction to seek leave to apply for judicial review, not a full-scale appeal to the Court of Appeal, existed for very nearly three years from the date of the decision in Randle to the date of the decision in Ashton. There is one other reported case in that period when leave was granted to apply for a judicial review and, in the event, it was unsuccessful.

However, if the courts had been inundated with vexatious applications to stay proceedings on the ground of abuse in those years, the noble Baroness would surely have been told about it by the Home Office. There must be statistics and records available about what happened and whether unreasonable delays occurred in the administration of justice in the period from the decision in Randle to the decision in Ashton from which your Lordships would be able to see at once that the jurisdiction causes great problems. But we have not heard a word about it. I have no anecdotal evidence of any such experience.

In those circumstances, I feel that I should seek the opinion of the House on the issue. I commend the amendment to your Lordships.

5.32 p.m.

On Question, Whether the said amendment (No. 2) shall he agreed to?

Their Lordships divided: Contents, 118; Not-Contents, 128.

Division No. 2
CONTENTS
Ackner, L.	Elis-Thomas, L.
Airedale, L.	Falkender, B.
Archer of Sandwell, L.	Falkland, V.
Ashley of Stoke, L.	Farrington of Ribbleton, B.
Barnett, L.	Fitt, L.
Beaumont of Whitley, L.	Freyberg, L.
Bridge of Harwich, L. [Teller]	Gladwin of Clee, L.
Brightman, L.	Gould of Potternewton, B.
Bruce of Donington, L.	Graham of Edmonton, L.
Campbell of Alloway, L. [Teller]	Gregson, L.
	Halsbury, E.
Carmichael of Kelvingrove, L.	Hamwee, B.
Carter, L.	Hanworth, V.
Castle of Blackburn, B.	Harris of Greenwich, L.
Cledwyn of Penrhos, L.	Harrowby, E.
Clifford of Chudleigh. L.	Haskel, L.
Clinton-Davis, L.	Healey, L.
Cocks of Hartcliffe. L.	Henderson of Brompton, L
Craigavon, V.	Hilton of Eggardon, B.
Dahrendorf, L.	Hollick, L.
David, B.	Hollis of Heigham, B.
Dean of Beswick, L.	Houghton of Sowerby, L.
Dean of Thornton-le-Fylde, B.	Howell, L.
Desai, L.	Hylton, L.
Diamond, L.	Hylton-Foster, B.
Donaldson of Kingsbridge, L.	Ilchester, E.
Donoughue. L.	Jay, L.
Dormand of Easington, L.	Jay of Paddington, B.
Dubs, L.	Jeger, B.

Jenkins of Putney, L.	Richard, L.
Judd, L.	Robertson of Oakridge, L.
Kennet, L.	Rodgers of Quarry Bank, L.
Kinloss, Ly.	Russell, E.
Kinnoull, E.	Saltoun of Abernethy, Ly.
Lawrence, L.	Seear, B.
Lester of Herne Hill, L.	Sefton of Garston, L.
Lloyd of Berwick, L.	Shepherd, L.
Lockwood, B.	Simon of Glaisdale, L.
Longford, E.	Slynnof Hadley, L.
Lovell-Davis, L.	Stedman, B.
Lowry, L.	Stoddart of Swindon, L.
McIntosh of Haringey, L.	Strabolgi, L.
McNair, L.	Strafford, E.
Mallalieu, B.	Templeman, L.
Marsh, L.	Thomson of Monifieth, L.
Mason of Barnsley, L.	Tordoff, L.
	Turner of Camden, B.
Mayhew, L.	Varley, L.
Milnerof Leeds, L.	Waverley, V.
Monkswell, L.	Weatherill, L.
Monson, L.	Wedderburn of Charlton, L.
Morris of Castle Morris, L.	White, B.
Mustill, L.	Wigoder, L.
Nelson, E.	Wilberforce, L.
Nicol, B.	Williams of Crosby, B.
Palmer, L.	Williams of Elvel, L.
Plant of Highfield, L.	Williams of Mostyn, L.
Prys-Davies, L.	Windlesham, L.
Rea, L.	Woolf, L.
Redesdale, L.	Young of Dartington, L.

NOT-CONTENTS
Addison, V.	Gainford, L.
Ailsa, M.	Gardner of Parkes, B.
Aldington, L.	Goschen, V.
Annaly, L.	Gridley, L.
Archer of Weston-Super-Mare, L..	Hambro, L.
	Hanson, L.
Astor, V.	Harding of Petherton, L.
Balfour, E.	Harlech, L.
Belhaven and Stenton, L.	Harmar-Nicholls, L.
Birdwood, L.	Henley, L.
Blaker, L.	Hives, L.
Blatch, B.	Holderness, L.
Boardman, L.	HolmPatrick, L.
Borthwick, L.	Hood, V.
Boyd-Carpenter, L.	Hothfield, L.
Brabazon of Tara, L.	Howe, E.
Braine of Wheatley, L.	Inglewood, L. [Teller.]
Bridgeman, V.	Jenkin of Roding, L.
Brougham and Vaux, L.	Johnston of Rockport, L.
Burnham, L.	Killearn, L.
Butterworth, L.	Kingsland, L.
Cadman, L.	Lane of Horsell, L.
Carnock, L.	Lauderdale, E.
Chalker of Wallasey, B.	Layton, L.
Chelmsford, V.	Lindsay, E.
Chesham, L.	Lindsey and Abingdon, E.
Clanwilliam, E.	Long, V.
Cochrane of Cults, L.	Lucas. L.
Courtown, E.	Lucas of Chilworth, L.
Cox, B.	Lyell, L.
Cranborne, V. [Lord Privy Seal.]	McColl of Dulwich, L.
	McConnell, L.
Crathorne, L.	Mackay of Ardbrecknish, L.
Cumberlege, B.	Mackay of Clashfern, L. [Lord Chancellor. ]
Davidson, V.
Digby, L.	Macleod of Borve, B.
Dixon-Smith, L.	Marlesford, L.
Elles, B.	Massereene and Ferrard, V.
Fanshawe of Richmond. L.	Melville, V.
Ferrers, E.	Merrivale. L.
Foley, L.	Mersey, V.
Fraser of Carmyllie. L.	Miller of Hendon, B.

Milverton, L.	Sharples, B.
Montgomery of Alamein, V.	Shaw of Northstead, L.
Mountevans, L.	Shrewsbury, E.
Mowbray and Stourton, L.	Skelmersdale, L.
Munster, E.	Skidelsky, L.
Murton of Lindisfarne, L.	Soulsby of Swaffham Prior, L
Norrie, L.	Stevens of Ludgate, L.
Northesk, E.	Stewartby, L.
O'Cathain, B.	Strange, B.
Onslow, E.	Strathclyde, L. [Teller.]
Orkney, E.	Strathcona and Mount Royal, L.
Park of Monmouth, B.
Pearson of Rannoch, L.	Sudeley, L.
Peel, E.	Swinfen, L.
Pender, L.	Tebbit, L.
Prior, L.	Teviot, L.
Rankeillour, L.	Thomas of Gwydir, L.
Rawlinson of Ewell, L.	Trefgarne, L.
Rees, L.	Trumpington, B.
Renton, L.	Ullswater, V.
Renwick, L.	Vivian, L.
Rodger of Earlsferry, L.	Whitelaw, V.
Romney, E.	Wise, L.
Seccombe, B.	Young, B.
Milverton, L.	Sharpies, B.
Montgomery of Alamein, V.	Shaw of Northstead, L.
Mountevans, L.	Shrewsbury, E.
Mowbray and Stourton, L.	Skelmersdale, L.
Munster, E.	Skidelsky, L.
Murton of Lindisfarne, L.	Soulsby of Swaffham Prior, L
Norrie, L.	Stevens of Ludgate, L.
Northesk, E.	Stewartby, L.
O'Cathain, B.	Strange, B.
Onslow, E.	Strathclyde, L. [Teller.]
Orkney, E.	Strathcona and Mount Royal, L.
Park of Monmouth, B.
Pearson of Rannoch, L.	Sudeley, L.
Peel, E.	Swinfen, L.
Pender, L.	Tebbit, L.
Prior, L.	Teviot, L.
Rankeillour, L.	Thomas of Gwydir, L.
Rawlinsonof Ewell, L.	Trefgarne, L.
Rees, L.	Trumpington, B.
Renton, L.	Ullswater, V.
Renwick, L.	Vivian, L.
Rodger of Earlsferry, L.	Whitelaw, V.
Romney, E.	Wise, L.
Seccombe, B.	Young, B.

On Question, Motion agreed to.

5.41 p.m.

[Amendment No. 3 not moved.]

Clause 4 [Evidence to be received on appeals]:

Baroness Blatch moved Amendment No. 4:

Leave out Clause 4 and insert the following new clause:

Evidence

(".—(1) In section 23 of the 1968 Act (evidence)— (a) in subsection (l) (power to receive evidence etc.), for paragraph (c) substitute— (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.", (b) for subsection (2) (duty to receive evidence in certain circumstances) substitute—

"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—

• (a) whether the evidence appears to the Court to be capable of belief;
• (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
• (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
• (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.", and
• (c) in subsection (3), after "any" insert "evidence of a".

(2) In section 25 of the 1980 Act (evidence)— (a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute— (c) receive any evidence which was not adduced at the trial.", (b) for subsection (2) (duty to receive evidence in certain circumstances) substitute—

"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—

• (a) whether the evidence appears to the Court to be capable of belief;
• (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
• (c) whether the evidence would have been admissible at the trial on an issue which is the subject of the appeal; and
• (d) whether there is a reasonable explanation for the failure to adduce the evidence at the trial.", and

(c) in subsection (3), after "any" insert "evidence of a".").

The noble Baroness said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments 21 and 22 which are consequential upon it, and also Amendments Nos. 23, 24 and 25 which amend the same section of the Act.

I should begin by apologising for the lateness with which these amendments were tabled. We had hoped to table them last Thursday so that they would have appeared on Friday's list, but in the event we were unable to do so. These amendments are all concerned with the receipt of fresh evidence by the Court of Appeal in England and Wales, and by the Northern Ireland Court of Appeal and the Courts-Martial Appeal Court which operate the same procedures.

At present, Section 23 of the Criminal Appeal Act 1968 contains two separate provisions on the receipt of evidence on appeal. The relationship between them is somewhat complex and has given rise to difficulties for the Court of Appeal. Subsection (1), which dates from 1907, provides a general discretion to receive the evidence of any witness where this would be in the interests of justice. It appears that by the 1960s the circumstances in which the Court of Appeal would exercise its discretion to admit fresh evidence in fact corresponded with the circumstances in which the court now receives it under subsection (2): namely, that it was relevant, credible, and admissible, and could not reasonably have been adduced at the original trial. Parliament responded in the Criminal Appeal Act 1966 (which was consolidated by the 1986 Act) by adding to the general discretion a narrower duty to admit fresh evidence if those conditions were satisfied.

The effect of this has been to create room for argument in appeal hearings about whether the court should receive evidence under the narrow, qualified duty in subsection (2) or under its general discretion in subsection (1). But the development of case law has rendered this into a distinction without a difference. If fresh evidence meets the criteria in subsection (2), it will always be in the interests of justice to receive it under subsection (1). Subsection (2) has in effect been subsumed into subsection (1), but that is obscured by the presence of two separate provisions on the statute book.

We have therefore taken the opportunity to devise amendments to improve the construction of Section 23. These are intended to provide a unified test for the receipt of fresh evidence which reflects the current practice of the Court of Appeal. The amendments retain the general discretion to receive the evidence of any witness in subsection (1). They replace the qualified duty in subsection (2) with a set of criteria to which the Court of Appeal is to have regard in considering whether to receive evidence. Those criteria are based on the existing tests in subsection (2). They require the court to have regard in particular to whether the evidence is capable of belief; whether it might afford any ground for allowing the appeal; whether it would have been admissible at the original trial, and whether there is a reasonable explanation for the failure to adduce it at trial. They accordingly retain the change effected by Clause 4 of the Bill, which these amendments replace, whereby the threshold for the receipt of fresh evidence is lowered to evidence which is "capable of belief".

The amendments also make it clear that the Court of Appeal is concerned under Section 23 with the receipt of fresh evidence rather than with evidence which has already gone before a jury at trial. This has always been the practice of the Court of Appeal.

We intend that these amendments should not in any way narrow the scope for the receipt of fresh evidence by the Court of Appeal. We have consulted the Lord Chief Justice about this and we are satisfied that the amendments would not alter the current practice of the court. I understand that the Lord Chief Justice is in full agreement with these amendments, though I hesitate to give his views on the matter before he has spoken. In particular, we do not think that there are any circumstances in which the court would decline to receive, under subsection (1), evidence which it would have received under subsection (2).

The amendments make equivalent provision for the receipt of fresh evidence by the Northern Ireland Court of Appeal and by the Courts-Martial Appeal Court so as to keep them in line with the Court of Appeal in England and Wales.

I turn now to the amendments to Schedule 3 to the Bill. These are minor and technical amendments which simply repeal a provision in Section 23(3) of the Criminal Appeal Act 1968 which no longer has any effect. When the Criminal Appeal Act was before Parliament, it was the law that the wife of a defendant was not compellable to give evidence on his behalf except on application by him; and vice versa. This reflected the law on the compellability of husbands and wives as set out in Section 1(c) of the Criminal Evidence Act 1898. Since then, the law has changed. The Police and Criminal Evidence Act 1984 repealed the relevant provision of the 1898 Act so that a husband or wife is compellable to give evidence on behalf of a defendant. That rendered the provision in subsection (3) redundant. However, Parliament did not take the opportunity in 1984 to remove this spent provision, and it has survived—presumably unnoticed—until now.

The other two amendments repeal the equivalent provision in the legislation on appeals in Northern Ireland and in relation to courts-martial. I beg to move.

Lord McIntosh of Haringey

My Lords, the Minister was good enough to write to me on Friday to make her apologies for tabling the amendment late and she gave me a full explanation of it and of the existing situation. I am grateful to her for that. She will recognise however that that is not the same thing as making it available to any noble Lord who may be interested and I hope that that situation does not occur in the same way again.

We accept the Minister's arguments that these amendments relate to the tidying up of a rather awkward construction of Section 23 of the 1968 Act and a comparable Act for Northern Ireland. It is important that the phrase "capable of belief' maintains its primacy, as it did in the original version of Clause 4 of the Bill. We accept that the conditions (a), (b), (c) and (d) in subsection (2) erode the "shall" provision at the beginning of that section. We accept that there is no major difference in the actual procedure of the courts as it is today, which we believe to be satisfactory.

Lord Taylor of Gosforth

My Lords, I am grateful to the noble Baroness for tabling this amendment, with which I entirely agree. Perhaps I can briefly say why.

As many of your Lordships will know, Section 23 of the Criminal Appeal Act 1968 governs the admission of fresh evidence by the Court of Appeal. As the section stands, fresh evidence can be admitted either under subsection (1), which provides a power to admit fresh evidence if it is necessary or expedient in the interests of justice, or under subsection (2) which imposes a qualified duty to receive fresh evidence in certain restricted circumstances. I say "qualified" because the court must be satisfied that the evidence would, if received, afford a ground for allowing the appeal; it must be satisfied that it is credible and admissible, and that there was a reasonable explanation for the failure to adduce it at the trial.

The case law has now reached the position that the duty to admit evidence in pursuance of Section 23(2) is effectively subsumed within the requirement in subsection (1) to satisfy the interests of justice. New Clause 4 will replace this rather awkward two-pronged provision with a unified test for the admission of fresh evidence which will be both clear and comprehensive. The new test will eliminate the rather sterile arguments which have been raised over the years about the distinction between and the application of the power in Section 23(1) and the qualified duty in Section 23(2), which I have just described.

I should emphasise to the House that this amendment will in no way lessen the likelihood of fresh evidence being received on appeal. The duty in Section 23(2) is, in my view, mandatory in appearance only. I and the judges whom I have consulted on this have been able to think of no occasion on which evidence would he received under the present Section 23 which would not be received under the new section contained in new Clause 4. It is therefore our view that the interests of justice will be better served by retaining the discretionary power to adroit fresh evidence in its current form but replacing subsection (2) with a set of criteria by reference to which the court should be required to test evidence when deciding whether or not to receive it on appeal. I support the amendment.

Clause 13 [General provisions about references):

Baroness Mallalieu moved Amendment No. 5:

Page 10, line 40. after ("raised") insert ("or not adequately raised or not adequately considered").

The noble Baroness said: My Lords, in moving Amendment No. 5 I wish to speak also to Amendment No. 6, which is consequential. I make no apology for returning to this small but important amendment which I withdrew after debate in Committee. If the amendment is not accepted I believe that there will be a small but significant number of cases in which a miscarriage of justice has occurred which the commission recognises as such but is powerless to refer on to the Court of Appeal—in other words, which it has no means of putting right

As it stands, Clause 13 allows the commission to refer a case on to the Court of Appeal only when two hurdles have been cleared. First, the commission must consider that there is a real possibility that the verdict or finding is unsafe and would not be upheld if a reference were made; and, secondly, the argument or evidence which leads the commission to that conclusion has never been raised before in earlier proceedings. Amendment No. 5 allows the commission to refer a case with a verdict or finding which it believes has a real possibility of being unsafe when the evidence or argument was raised or considered, but only inadequately at the earlier proceedings.

As an illustration, this will cover the case where the lawyer was guilty of incompetence, or, perhaps rather more commonly, of inadvertence, or made an error of judgment in his conduct of the case, or failed to appreciate the significance of evidence or an argument at the time. Lawyers make mistakes. When a man or woman is wrongly convicted as a result of such a mistake it would seem to be wrong that the commission should be prevented from sending that case on to be properly considered and, it is to be hoped, corrected.

When I raised this matter at the Committee stage the noble Baroness in answer raised two essential objections to the amendment. First, she said that the commission should not be required to review decisions taken by the appropriate courts. In other words, to use her phrase, the commission must not be allowed to usurp the role of the court. I agree totally with that. This amendment would do no such thing. Where an argument or evidence has been properly raised and properly considered by the earlier court the commission will not be permitted to refer the case back. It is only when the argument was not properly advanced or considered in such a way that the court has been able or willing to give adequate consideration to it that the commission would be permitted to make such a reference.

Secondly, the noble Baroness said that the commission would receive a great number of applications which were in effect complaints from prisoners about the way in which their lawyer had handled the case, claiming that he or she had done so inexpertly, inadequately or ineffectively. That, I suspect, will be the case in any event. I anticipate that the commission will receive a large number of applications based upon those lines. As it stands, unless there is new argument or new evidence, the applicant must be turned down, whatever the merits of his or her complaint. The amendment simply enables the commission, in a case where it believes it is likely that the conviction is unsafe and in its opinion the lawyer did not adequately advance the argument to the court or the court did not give proper consideration to it, to send that case for that proper consideration. I simply ask: what is wrong with that?

Worry about the pressure of numbers of applications to the commission must not be allowed to lead the commission to be put at its inception into a straitjacket which will prevent it from doing the job which it is being set up to do—in other words, to identify and try to correct the mistakes which have led to miscarriages of justice.

The Royal Commission in effect gave birth to this piece of legislation. This very aspect of the Bill was, I understand, something which occupied the Royal Commission for a considerable period of time. At the Committee stage of the Bill the chairman of the Royal Commission, the noble Viscount, Lord Runciman of Doxford, who is unable to be here today, spoke in support of the amendment. Perhaps I may briefly remind the House of what he said: 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 … that there is no downside to extending the clause by this small but important amendment".—[Official Report, 8/6/95; col. 1514.]

The amendment also received the support of the noble Lord, Lord Hutchinson of Lullington, who spoke with vast experience of the criminal law.

Having had the opportunity to look at both what was said in Committee on 8th June and to consider the matter again in the interim, I hope that the noble Baroness will today feel able to consider making what I believe to be a small but very important alteration to the Bill. I beg to move.

Lord Renton

My Lords, it may seem a minor point, but I think it will be a difficult matter of interpretation to decide what comes within the meaning of the word "adequately". When someone has represented an accused personally in court that representative may have done his best but he may not have been very competent. He may not have done justice to the point that he was trying to raise. Does that mean that he has performed adequately? He may have taken quite a long time. I should have thought that this is a very difficult matter for the commission to decide, especially as the proceedings in question will not have taken place before the commission.

The word "adequately" applies not only to the question of raising the matter but to the question of it being "adequately considered". That raises a doubt in my mind as to whether Amendments Nos. 5 and 6 will be of advantage or will cause confusion. If we leave it with the word "raised" then the commission will have a pretty wide discretion. It might be better to leave matters like that instead of risking the confusion that could arise over arguments as regards the meaning, in particular circumstances, of the word "adequately".

6 p.m.

Baroness Blatch

My Lords, the objective of Clause 13(1) is to set broad conditions on the power of the commission to refer convictions, verdicts and findings to the courts. There are two essential requirements. First, there must appear to be a "real possibility" that the conviction, verdict or finding will not be upheld in the appeal which would follow a reference. Secondly, there must appear to be some evidence or argument not previously raised in the courts which now gives rise to that "real possibility" of a successful appeal.

The purpose of these conditions is to guide the commission, and those who put forward cases to it, as to the sort of circumstances in which it will be appropriate for the courts to hear a further appeal as a last resort. They are reasonable criteria, given that cases considered by the commission will usually have been twice before the courts already. These criteria serve to discourage applicants from believing that the courts may be persuaded simply to go over old evidence again and come to a more favourable view, which is one of the points made by my noble friend Lord Renton.

Amendment No. 5 seeks to expand one of these criteria, but for the reasons which I gave in Committee, I do not believe that it would be right to add to Clause 13(1) in this way. The amendment would, it seems to me, risk burdening the commission with many applications in hopeless cases where the applicant nevertheless represented that the jury or the Court of Appeal could not have considered his arguments properly. Of course, the commission would not be bound to refer these cases, but it would be required at least to go through the process of considering for itself whether the arguments had been adequately presented or considered at trial or on appeal: This would be an unfortunate requirement on the commission because it would be bound to reappraise the quality of the courts' previous judgments in a way which the conditions in the Bill as it stands do not.

Although I see difficulties with this amendment, I do understand the force of some of the concerns which the noble Baroness has expressed. In particular, it is not at all the intention of this Bill to prevent the courts from receiving a reference in any case where there is substantial ground for them to look again at a conviction. I agree with the view that in setting reasonable criteria for references we should he doubly careful to ensure that references are not inadvertently prevented where injustice would result. However exceptional, there may be circumstances in which a conviction plainly ought to be referred and yet there was doubt about whether this could be done even under the very broad criteria in Clause 13(1) (b). I therefore propose, so far as Clause 13(1) is concerned, to bring forward at Third Reading an amendment which would preserve the essence of the present criteria, while ensuring that they were not so tightly drawn as to risk excluding this sort or exceptional case.

I take a different view of Amendment No. 6 which would relax the parallel condition in Clause 13(2) governing the reference of sentences. That is the point: here we are talking about sentences. Having regard to the previous debates in which this provision was criticised for not being tight enough, I see no need to relax it in the way now proposed. In particular, your Lordships will note that in relation to sentences in Clause 13(2) we have the concept of "information", which is a wider concept than "evidence". The amendment now proposed would be unhelpful for the same reason as in relation to convictions; that is, it would encourage questioning of the quality of the courts' reasoning and judgment. It would, I fear, give rise to many of the problems which the noble Baroness was concerned about when she moved to tighten the Clause 13(2) criteria in Committee.

This has been a helpful debate. It is important that the criteria for references should fully serve the purposes of the new arrangements in the Bill—above all, of course, the correction of miscarriages of justice. I shall bring forward at Third Reading an amendment to Clause 13(1) which will aim to meet some of the concerns that have been expressed. But I remain of the view that the balance in Clause 13(2)—that is to say, on sentences—is right as it stands. In that light, I hope that the noble Baroness will not see any need to press the present amendments.

Baroness Mallalieu

My Lords, I am grateful to the Minister. I am encouraged that, as I understand it, her amendment is likely to make it clear to the commission that it will retain a wide discretion in relation to the cases it refers. As I understood the noble Lord, Lord Renton, his understanding is that the present wording already gives it a wide discretion. I hope that the amendment will make that abundantly clear.

I fully understand the reasons behind the noble Baroness's reluctance to embrace Amendment No. 6 in view of the slight dichotomy between the two amendments at Committee stage. I am very grateful to her. I look forward with interest to the amendment which she will produce, which I hope I shall feel able to support. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 18 [Power to require appointment of investigating officers]:

Lord McIntosh of Haringey moved Amendment No. 7:

Page 14, line 23, leave out from ("may") to end of line 24 and insert ("either require the appointment of an investigating officer as provided in section 19 to carry out the inquiries or, if subsection (8) applies, themselves appoint an investigating officer.").

The noble Lord said: My Lords, in introducing this amendment, I give the apologies of the noble and learned Lord, Lord Scarman, who, as your Lordships know, finds it very difficult to attend the House at all and is unable to do so today. I have discussed this amendment in detail with him and he fully supports it.

This amendment follows one which the noble and learned Lord moved at Committee stage. In accordance with the way in which your Lordships like to consider matters of this kind, we have sought to moderate the terms of the amendment which was put forward and voted on in Committee. What is now proposed is the essence of Amendment No. 8: The Commission shall only appoint their own investigating officer if there are … exceptional circumstances that would make it likely that any person appointed under section 19 would not be suitable to carry out the investigation".

We are well aware that there have been government amendments to Clause 19 which have been very helpful in increasing the power of the commission over the investigations carried out on its behalf. I believe that the House will agree that the integrity and independence of the commission are absolutely fundamental to the effective operation of this Bill. Certainly noble Lords from all parts of the House have emphasised that point, as indeed it was emphasised in another place.

So it is not that the Government are not moving to some extent in the direction we wish them to go, but we believe that they have not gone quite far enough. That is the view not only of my noble friends but of many others outside. The noble Viscount, Lord Runciman of Doxford, speaking in Committee, emphasised his support, as the chairman of the Royal Commission, for the amendments which were then proposed. The Association of Chief Police Officers, which does not take a view on the Bill as a whole, has argued that the commission should have what it calls "a central unit", independent of police forces within the commission, which can carry out or manage complex or controversial investigations. This amendment, in cases of complex or controversial investigations, would give the commission that power.

This is not a theoretical amendment. I am sorry to say this, but there are practical examples of the involvement of the originating police force in investigations which have been unsatisfactory. There are very recent examples and perhaps I may give one. I refer to the case of Mary Druhan who was convicted of arson and murder on 12th June 1989. Justice put forward representations on her behalf to the Home Office in a petition dated July 1993. In January 1994, Justice was told that the Metropolitan Police had been asked to make further inquiries. In January 1995, having heard nothing, Justice wrote to express concern because there had been no response and that message was passed on to the police.

In April 1995, Justice contacted the police again and found that there had been no response to the Home Office, that there had been no reinterviewing of any of the witnesses and that the police had not even seen a copy of the 1993 petition. The police had not taken the original Home Office letter to be authority to reinvestigate and had simply referred the matter to the police files. In June of this year—in other words, during this month—the Home Office recognised that the police inquiry had been inadequate and said that the case had been resubmitted to the same police force for proper inquiries to be undertaken.

This is June 1995 and Mary Druhan has been in prison for six years. It is nearly two years since a full dossier was submitted in the case and 18 months since the police were asked to respond. That is not good enough. Of course, much of that will he put right by the provisions of the Bill; but some of it will not because, under the legislation, the natural expectation is that the case would go back to the originating police force and, in this case, the police force was very severely at fault.

Perhaps I may give your Lordships another example. I refer to the case of Brian Parsons, who was convicted of murder in 1988. The solicitors were passed information, after he appealed unsuccessfully, which suggested that the murder had been committed by two other men. The original police force was asked to reinvestigate in 1992, but television journalists found important forensic evidence which had not been disclosed to the defence. The independent forensic scientist has claimed that her investigations were severely hampered by the police. It took 18 months and 33 letters before she was allowed access to the exhibits.

Those cases have not yet been resolved and they must, of course, be taken with that fact in mind. However, I suggest that they offer sufficient evidence that the presumption that a case would go back to the originating police force is simply not satisfactory. The availability of the power to the commission in exceptional circumstances to have its own investigators is, we believe, essential to its integrity and independence.

In response to the amendment put forward in Committee by the noble and learned Lord, Lord Scarman, the Minister said that the staff were already there in the commission. But of course such staff are required to exercise supervision rather than conduct the cases. It was suggested that a body of people to carry out investigations would have a varying workload and that that would make it difficult for them to be used effectively and to be available effectively. But there will be something like 1,500 investigations taking place every year. If a few of them cannot be diverted without undue disruption to an internal force, it is difficult to know how effective the management is.

In Committee, the Minister referred to it as being a shadow police force. That is not the intention. The intention is that there should be a reserve power available. That is all that the amendments would provide. The Minister also argued that the commission's investigators would need the whole range of police powers such as the arrest and compulsion of witnesses. I confess that the amendment that we put forward on the powers of investigators was defective in the sense that it relied on the example of the Companies Act rather than on other legislation. But we have not sought to put forward the same amendments.

However, the "Police Complaints Authority" model, which has been adduced in support of the existing provisions in the Bill, is really no more satisfactory. If the amendments are agreed to, I am convinced that it would be possible without a great deal of difficulty, but with more expertise than I have, adequately to define what powers the internal investigators should have. After all, this part of the Bill refers to investigations to b carried out by a wide range of public bodies and not just by the police.

It is not a dramatic amendment and it is certainly not as far reaching as the amendment which both I and the noble and learned Lord, Lord Scarman, would have wished to put forward. However, it is a movement towards the reaffirmation of the integrity and independence of the commission from the rest of the criminal justice system which we believe to be essential for the proper and effective implementation of such an important and worthwhile Bill. I beg to move.

6.15 p.m.

Lord Renton

My Lords, in Clauses 18 and 19 the power to appoint an investigating officer is hedged about with a number of conditions. Perhaps I may invite the attention of the noble Lord, Lord McIntosh of Haringey, to Clause 18(6) which says: The Commission may direct—

1. (a) that a person shall not be appointed, or
2. (b) that a police force or other public body shall not be selected, under subsection (4) or (5) without the approval of the Commission.

That seems to give the commission the last word in the matter. Although I appreciate the motives of the noble Lord—indeed, if I may say so, he put the matter most fairly—I wonder whether his amendments would merely add to the elaborate precautions which Clauses 18 and 19 already contain.

Lord Rodgers of Quarry Bank

My Lords, in rising to express my support for the amendment moved by the noble Lord, Lord McIntosh, and standing also in the name of the noble and learned Lord, Lord Scarman, I hope that it will be within the rules of order for me to speak obliquely to Amendment No. 9, which is tabled in my name. I understand that my amendment was originally grouped with Amendments Nos. 7 and 8, and that seemed to me to make good sense. However, the amendments were later ungrouped. I do not want to cause the Minister any embarrassment; but, if I were to speak now, I would deliver one short speech rather than two longer ones which at least would earn me some credit within the House.

Baroness Blatch

My Lords, the noble Lord's comments actually come as some relief to me. The amendments were grouped but I was invited to decouple them, which I agreed to do. However, I should be most happy to take all three amendments together, if the noble Lord opposite has no objection.

Lord McIntosh of Haringey

No, my Lords; I have no objection.

Lord Rodgers of Quarry Bank

My Lords, I am most grateful. When the Minister spoke in Committee on the amendment moved by the noble and learned Lord, Lord Scarman, I thought that she gave a fuller, more thoughtful and more convincing description of the processes of investigation and the powers provided in the Bill than we had heard hitherto. I did not have the opportunity on that occasion to say that I was indeed most grateful to her for explaining much more fully how the Government envisage the provisions of the Bill will work.

However, it did seem for a while that the Minister was arguing that the Bill already contained the provisions being requested by the noble and learned Lord, Lord Scarman. Indeed, judging by her reply to a question from the noble Lord, Lord Merlyn-Rees, it seemed that we had perhaps overlooked certain provisions in the Bill. However, the Minister then said very firmly and fairly what the Bill would not do. Perhaps I may quote from the Official Report where the Minister said: The Bill does not provide for the establishment of a sizeable in-house team for the purpose of carrying out the sort of detailed, on-the-ground investigations that are currently carried out in a number of these cases by police forces".—(Official Report, 12/6/95: col. 1601.] The Minister then went on to give what she called her practical reasons and reasons of "principle" as to why that was the case. Most of those reasons—and I do not complain—were of a rhetorical nature. Indeed, I believe that here were seven to eight questions in the course of a couple of paragraphs to which I believe there were convincing, non-rhetorical replies. Although I am tempted to quote them, I believe that it would detain the House unreasonably. As the noble Lord, Lord McIntosh said, we have covered that ground before and it is familiar to all of us.

I would only say that, as the Minister has conceded and as the House will know because it is provided in the Bill, there are three parties to the outcome of the Bill, taking account of discussions within the House and another place and then the appointment of an independent commission. There is the Minister and the Government who are responsible for the Bill; there is Parliament which is asked to support it; and then there is the commission which will have to operate the Bill's provisions thereafter.

I do not believe that a further debate would persuade the Minister that she is wrong and that there is a need to change the provisions on the face of the Bill, hut equally—I believe this is evident—she will not persuade all Members of the House that she is right. Indeed, in the vote on the amendment moved by the noble and learned Lord, Lord Scarman, in Committee, Members from her own Benches, from the Cross-Benches as well as from the Opposition parties voted in favour of it. An honest difference of view is widely held. I should like to describe it as a drawn game. It is a drawn game from which we will leave the discussions on the Bill when eventually it has its Third Reading.

If the Government are not persuaded by their critics, and the Government's critics are not persuaded by the Minister, cannot we in some way leave it to the independent commission, given certain safeguards, to take a view as to whether an internal investigating team would make sense? The Minister thinks it would not, and has given reasons. Other Members of the House, myself included, believe that there are good reasons as to why there should be an internal investigating team. If we cannot persuade one another, why cannot we say that if in due course the independent commission decides that it would like an in-house investigating team, that missing clement in the Bill will he restored by means of a statutory instrument?

I should expect the commission, after a period of no fewer than two years from the commencement of the Act—clearly it must have experience of how the processes work—in its annual report, or at another appropriate time, or in another appropriate way, to indicate to the Home Secretary that it believed that the powers which are denied it on the face of the Bill are now required to enable it to carry out effectively the independent function it has been given by Parliament. In those circumstances, the commission could say to the Home Secretary that it would like the Home Secretary to take those powers by statutory instrument.

It would still be within the Home Secretary's discretion to say no. The Home Secretary would still have the final say. He could say that as the Bill had been passed by Parliament, he saw no present need for those powers to be exercised. But if he, or a successor, took a different view, or the commission, over a period of time, decided that it needed those powers, it would be possible to take them by statutory instrument. That is a reasonable compromise. I hope that if the Minister finds it necessary to express her opposition to the amendment moved by the noble Lord, Lord McIntosh, which I support, she might at least, in a lifeline to the House, suggest that in rejecting that amendment she can accept mine as a reasonable compromise. She would then make us all very pleased with her, and she would find that the commission in future would regard that as a valuable concession by Her Majesty's Government.

Lord Hylton

My Lords, it is by now well known that most serious miscarriages of justice took place in the cases known as the Birmingham Six, the Guildford Four, and the Ulster Defence Regiment Four. After many years, and, in some cases, several appeals and investigations, 13 out of 14 of those men were eventually rehabilitated. I had personal knowledge and dealings with a number of those men who have subsequently been cleared.

In the process of that, I wrote many letters to many different Secretaries of State. Out of those cases it became clear that circumstances can arise in which the conventional police forces have great difficulties in investigating one another. One can understand those difficulties. That is why I believe that it is of the greatest importance that the new commission should have the widest possible reserve powers in special and difficult circumstances. I take no view as between these various amendments and the various forms of drafting, but I hope that the Government appreciate the strength of the case for wide reserve powers relating to investigations.

Baroness Blatch

My Lords, I hope that I can allay some of the misgivings that people have about this part of the Bill. We had a very useful debate in Committee, as a result of which it seemed to me that we were all virtually agreed on the question of who may be appointed to carry out inquiries on the commission's behalf. It was said by the noble Lord, Lord McIntosh, and other noble Lords that the commission would want to make use of police investigators in a substantial number of cases, but that in some cases it would want investigations done for it by someone other than a police officer, including, possibly, in some exceptional cases where a police officer would otherwise have been the natural choice. That is an entirely reasonahle view and the Government share it.

I would support Amendments Nos. 7 and 8 if they were necessary to enable the commission to have investigations done by its own staff or by someone else other than a police officer. But they are not necessary: the Bill already allows those things to be done.

The commission has power under paragraph 4(1) of Schedule 1 to appoint its own employees, with no restriction as to the sort of people its employees may he. It must be plain that the commission does not need special provision in order to direct and supervise its own staff. Nor does it need such provision in order to engage the services of an outsider—for example, an accountant—to investigate a case for it. The commission could contract such a service; the terms of the contract would provide the commission with the necessary ability to supervise and direct matters. Alternatively the commission could itself employ the accountant or whoever on a temporary basis.

The amendments are therefore simply not necessary to achieve the flexibility on which we are all agreed. A power to require that an investigating officer he appointed is necessary in relation to police forces and other investigating bodies in order to ensure that police officers and members of those other bodies are available to assist the commission in relation to matters for which the police service or those other bodies have some wider responsibility. That is the purpose of Clauses 18 and 19.

While, I understand, therefore, the spirit behind these amendments I have to say that they would add nothing at all to the Bill—the point made by my noble friend Lord Renton. They confer no power on the commission or on any other person which is not already available under the Bill as it stands.

Amendment No. 8, on the other hand, appears rather surprisingly to limit the flexibility which the commission already has under the Bill. Instead of preserving the commission's ability to inquire into a case by whatever means at its disposal it judges best, it would appear to oblige the commission, before asking someone to carry out inquiries for it, to trawl police forces and other public bodies throughout the country to see if one of their officers could do the task. So the accountant I mentioned earlier could not he engaged until every police force had been asked whether an officer with suitable knowledge of financial dealings might be available. I am doubtful whether that is what the noble Lord intended, but I fear it will he the effect of the amendment.

I cannot commend these amendments because they add nothing to the Bill, as my noble friend Lord Renton said, except what, in the case of Amendment No. 8, appears to be an unhelpful restriction on the commission's freedom to inquire into cases by whatever available means it sees fit to use. Therefore I hope that the amendment will not be pressed.

I turn to the amendment tabled by the noble Lord, Lord Rodgers of Quarry Bank. The Bill confers a number of specific duties on the commission, such as those in Clause 13(7) and (9) (which require the commission to give its reasons to the court when referring a case, and its reasons to the applicant when refusing to refer his case); Clause 14, subsections (1), (3) and (4) (investigations on behalf of the Court of Appeal); Clause 15, subsections (10) and (92) (assisting the Secretary of State in relation to the Royal Prerogative of Mercy); and Schedule 1, paragraphs 8 and 9 (the requirement that the commission prepares annual reports and accounts and submits these to the Secretary of State). It also provides it with all the powers that the Government believe it will need to carry out its work.

Briefly, the commission will have the power to approve the choice of investigating officer. It will be able to require that another person be selected and appointed if it is not satisfied with the first person chosen; to insist on the appointment of an investigating officer from a force or public body other than the force or other public body which originally investigated the case and to approve the choice of the outside force or body; to direct what inquiries should be made; and to supervise their conduct to the extent the commission thinks necessary. The commission's directions can be as precise, and its supervision as close, as the member of the commission in charge of the case thinks fit. In addition to these extensive powers, the commission may take any other steps that it thinks appropriate to investigate its caseload.

It is not clear to me what additional duties should be imposed on the commission, nor what powers the commission might require in addition to those which I have described. Indeed, I know of no evidence to suggest that the commission will require any additional powers. But even if some such evidence should come to light in due course, I have to say to your Lordships that I do not believe that the procedure proposed in the amendment for conferring further powers or duties on the commission would be the right one. The powers and duties of the commission should be settled by Parliament in primary legislation, not by order of the Secretary of State.

I find myself in the ironic situation of considering how extraordinary this amendment is. If the Government had suggested that this open-ended power should be given to my right honourable friend the Home Secretary—that is, to say that any such other powers which may be deemed by the Secretary of State to be necessary shall be enacted by secondary legislation—I should be called to the Dispatch Box to be told that it was an abuse of secondary legislation and we should not give an open-ended power to my right honourable friend to come forward and extend the powers of the commission. I believe that it is a matter for primary legislation.

I turn now to some of the issues that were raised during the debate. The noble Lords, Lord McIntosh and Lord Hylton, mentioned several cases. I hope that they will agree that the intention of the Bill is here almost precisely because of some of the examples raised by noble Lords. There is a genuine attempt on behalf of the Government to ensure that we do not see the like of those decisions again.

I wish to clear up the point about the commission having its own central unit. The Government intend that the commission should have its own unit of experienced investigators to advise it and also, as the noble Lord suggested, to play a part in the direction of investigations. Therefore, the amendment is not necessary to enable that to be done, nor would it add anything to the Bill.

In making references to other cases, the noble Lord, Lord McIntosh, referred to the case of Mary Druhan. I hope that he will allow me to write to him about that. Under the Bill as proposed the commission will have powers which the Home Secretary at present does not have. In other words, if the commission wishes to appoint an outside police force, that can be done under the new circumstances.

It would not be appropriate for me to take the individual cases referred to by noble Lords because the purpose of the Bill is to ensure that those injustices are not repeated. I hope that the amendments will not be pressed.

6.30 p.m.

Lord McIntosh of Haringey

My Lords, that was a very remarkable reply because it raised a whole line of argument which was not raised in Committee, nor, as far as I know, when similar amendments were moved in another place. I listened to the Minister most carefully and I hope that I represent her argument correctly. She said that the powers already exist because of Schedule 1, paragraph 4(1). It states: The Commission may appoint a chief executive and such other employees as the Commission think fit, subject to the consent of the Secretary of State and the Treasury as to their number and terms and conditions of service". Clearly, that provision refers to the permanent employed staff of the commission.

I now turn to Clause 18, which we are considering. It requires that the investigations should be carried out when the commission thinks fit and in two different circumstances. Subsection (2) provides that if the offence was investigated by persons serving in a public body—I shall return to the definition of "public body", which appears in Clause 21—the requirement may be imposed on the person who runs the public body or on a successor body if the public body ceases to exist. I have turned the wording of the subsection into English as opposed to legislative language. Subsection (3) provides that if no offence was investigated by persons serving in the public body, a requirement may he imposed on a chief officer of police.

Taking those two subsections together, the only people who can carry out investigations are those who are in public bodies, whether the offence was investigated by the public body or not. Clause 21 defines "public body" as:

1. "(a) any police force,
2. (b)any government department, local authority or other body constituted for purposes of the public service, local government or the administration of justice, or
3. (c) any other body whose members are appointed by Her Majesty, any Minister or any government department or whose revenues consist wholly or mainly of money provided by Parliament",

leaving on one side the Northern Ireland aspect.

The Minister brought together in her argument the provision in Schedule 1 which refers to the permanent staff of the commission and the provisions in Clause 18 which require that the investigation should be carried out by a public body. Is she telling the House that under Clause 21(1) (c) a public body—in other words, any other body whose members are appointed by Her Majesty—can include the commission itself? If she is, we are totally satisfied and there is no problem whatever. If she is not telling us that the commission itself can constitute a public body as defined in Clause 21(1), what is the relevance of her reference to Schedule 1, paragraph 4(1)?

I must ask the Minister for a response to that question because it is fundamental to the amendment and to the powers of the commission. I hope that she will be able to give me an answer before I decide what to do about the amendment.

Baroness Blatch

My Lords, my understanding has always been that the commission has the powers to investigate. I said in my response to the amendment that the Government intend that the commission should have its own unit of experienced investigators to advise it and also, as the noble Lord suggested, to play a part in the direction of investigations.

There may be some difference between us on investigating and, for example, using the powers of the police for powers of entry. The commission can prescribe the investigation, oversee it, specify it and supervise it as closely as possible. Its members can physically accompany the police if powers of entry are required, and they can go in and witness and observe the police if they wish the police to conduct the questioning. There may be a distinction in the noble Lord's mind about using the powers of the police in order to carry out the investigation. I understand that an investigation can be undertaken by the commission.

The Government's position has always been that the commission can employ investigative staff and can engage investigative expertise. The commission can do that as it thinks fit. If it decides to do things in that way, it will not need to use its Clause 18 powers. I hope that that satisfies the noble Lord. It may be that I have not articulated that as well as I might have done; but, both in Committee and on Second Reading, I tried to say that that is the case.

Lord McIntosh of Haringey

My Lords, on the face of it, that seems to be extraordinarily helpful. It seems to answer the points which were raised on Second Reading and in Committee in a way that has not been done before. There may be some sub-text which we are not getting to. It may be that there is a difference between the power to investigate, as the Minister puts it, and the power to conduct investigations; I do not know. However, the Minister and I can discuss those matters between now and Third Reading.

On the basis of what the Minister says, which I believe to be a very significant advance in the powers, independence and integrity of the investigation, I shall not press this amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 20 [Other powers]:

[Amendment No. 9 not moved.]

Baroness Mallalieu moved Amendment No. 10:

After Clause 21, insert the following new clause:

Postal application for legal advice and assistance

(". The Secretary of State shall make regulations to amend the Legal Advice and Assistance Regulations 1989 to permit a prisoner to make a postal application for legal advice and assistance under regulation 9 so that representations to the Commission may be made on his behalf.").

The noble Baroness said: My Lords, as the noble Baroness may remember, in Committee I moved a rather wider amendment in relation to the provision of legal advice and assistance for prisoners making representations to the commission. I withdrew that amendment when the noble Baroness indicated her willingness to re-examine the present provisions in the light of the difficulties which I drew to her attention in connection with the operation of the green form scheme.

I am grateful to the Minister for the attention that she has given to the matter, and in particular for the letter which she sent me in the interval between Committee stage and today in which she gave me some considerable assurances on a number of aspects and in particular on tackling the delays in the granting of extensions of legal aid and attempts to promote consistency of decision among different area officers.

Unfortunately, the detailed submissions which I sent to her, which were prepared in part by the organisation, Justice, crossed in the post with her letter. In particular, they related to the need for changes to Regulation 9 to permit a postal application for legal advice and assistance. Therefore, I return to that one aspect of the matter on Amendment No. 10 in the hope that the Minister will give it further consideration today.

The present position is that under the green form scheme, legal aid is available for those who wish to petition the Home Secretary. On a number of occasions at earlier stages of the Bill, the noble Baroness said that she believes that that provision will be adequate to allow prisoners to prepare applications to go to the proposed new review commission.

There is a difficulty because under Regulation 9 of the legal advice and assistance regulations, the application form for green form help must, as a general rule, be signed by the client in the presence of a solicitor. That illustrates the difficulties which begin to arise because prisoners are scattered; the green form scheme allows two hours of assistance from the solicitor; to see the prisoner may involve a journey which takes a considerably greater time than that; and the solicitor is not paid to travel to see the prisoner, he is paid only after the form has been signed; nor is he paid for any preparation that he does before the form is signed, making it impractical for him to prepare the case and often to give truly meaningful advice when he first sees his proposed client.

There are two exceptions to the rule that the form has to he signed in the presence of the solicitor with the client there. The first is that a franchised solicitor is allowed to make those arrangements by post. Franchised solicitors may claim for telephone advice, for the cost of the outward journey, although somewhat curiously, as I understand it, not for their own travelling time. But importantly—and most important in that context—they may accept postal forms.

The other exception is that a prisoner may authorise somebody else on his behalf to go to the solicitor's office and sign the form for him. That sounds well and good but if no changes are made to the present regulations, that in itself creates difficulties for a number of prisoners.

Perhaps I may indicate shortly some of those problems. Not all prisoners have somebody on whom they can call to act as their representative to visit the solicitor. Even if they have someone, that individual must be in a position to provide the solicitor with accurate and detailed information about the prisoner's finances. That person must be prepared to travel at his own expense to the solicitor. If he needs to see the proposed applicant to obtain the financial details, he may also have to travel at his own expense to see him in prison, wherever that may be. For many prisoners, it will simply not be practical to arrange for somebody else to do that.

Not all solicitors are franchised and the prisoner who wishes to be represented by a non-franchised solicitor, who perhaps conducted the trial for him and therefore is the most appropriate and ultimately most helpful person to the commission to give him advice, will be at a distinct disadvantage.

Such a prisoner represented by a non-franchised solicitor will face considerable difficulties. Perhaps I may outline three. First, the legal aid fund will not pay a non-franchised solicitor travelling expenses to the prison in order to get the form signed. The solicitor must be willing to pay for himself. When one is dealing with an organisation like Justice, which receives something in the order of 600 applications per year, it is not feasible in view of the fact that travelling to many prisons will occupy the time of a solicitor for something in the order of half a day. It is not feasible when, as often happens, long-term prisoners are moved frequently.

Secondly, even the costs of the return journey from seeing the prisoner may not he fully covered because some area officers set maximum limits on travelling expenses or insist that local solicitors act. Again, prisoners are moved and continuity is disrupted.

It may be asked why a local solicitor cannot act as agent and sign the form or even take the basic instructions and then pass them onto a specialist organisation with specialist lawyers such as Justice. But local solicitors will not visit prisons as agents to get the forms signed unless they are assured that they will be paid. An organisation like Justice is simply not in a position to pay solicitors privately. Of course, local solicitors expect to know that their costs and expenses prior to the signing of the form will be recoverable and they are not so recoverable under the present system.

The present regulations could be varied very simply and easily to allow postal applications from a prisoner in an appropriate case, even when the solicitor whom he has chosen is not franchised. The results would have three very beneficial effects. First, a solicitor could look at the case and prepare it before he sees the client. He could perhaps knock on the head a worthless application which should never waste the time of the commission.

Secondly, the prisoner would not be reliant on having a solicitor who is sufficiently generous and charitable to pay his expenses out of his own pocket. Thirdly—and I hope that this will commend itself to the Minister—it will save the Legal Aid Board money because what on earth is the point of requiring a solicitor to travel to a prison to get a form signed? It seems to me that in this day and age of technology, the use of a 25 pence stamp or even second-class postage could save a great deal of money in appropriate cases.

Having pin-pointed in rather more detail one of a number of matters which I raised in Committee, I hope that on this occasion the Minister will be able to say that she can either make provision for the legal advice and assistance regulations to be amended to allow that small but important change or, at the very least, to say that further guidance will be given to local boards to enable that to happen. I beg to move.

Baroness Blotch

My Lords, provision already exists in the Legal Advice and Assistance Regulations 1989 for some solicitors to accept postal applications for Green Form advice and assistance in certain circumstances. Where a solicitor holds a legal aid franchise for the particular category of legal aid work in which advice and assistance are to be given (which in these cases would be crime), and where it is considered justifiable, a postal or telephone application may be accepted. Circumstances in which it may be considered justifiable to accept a postal or telephone application include where the convicted person is in prison or disabled, in hospital, or where he or she is a single parent without child care.

Franchised solicitors may also claim for telephone advice and for the cost of outward travel, although not for travelling time, to attend on a client away from the office prior to the signing of a Green Form application. These franchises are the result of a relatively new initiative by the Legal Aid Board. At present there are 1,050 solicitors' offices which hold a legal aid franchise. These franchised offices are spread throughout England and Wales, albeit with some degree of regional variation. I understand that the Legal Aid Board aims to increase the numbers substantially over the next few years.

I accept that some prisoners will have, or will want to go to, legal advisers who are not franchised. If they wish to obtain Green Form advice and assistance from a non-franchised firm of solicitors, that of course is a matter for them. Postal applications cannot currently be made in such circumstances. But it is possible for the convicted person to authorise someone else to attend the solicitor's office and to make the necessary application on his behalf. The authorised person must be able to supply the solicitor with details of the convicted person's financial circumstances so that eligibility can be assessed. But this does not seem to be unreasonable.

We believe therefore that prisoners wishing to make representations to the commission will have access to legal advice and assistance through the Green Form scheme without the need for further changes to the current arrangements. The current arrangements will be kept under review so that if any changes are thought necessary in the light of the commission's operations these can be considered. Changes can of course be made without the need for primary legislation, either by issuing guidance or by way of an amendment to the Legal Advice and Assistance Regulations 1989.

A legal aid franchise holder has demonstrated that his or her work practices meet certain specified standards. As a result, the Legal Aid Board is provided with assurances over the quality of the franchise holder's work. In return, the franchise holder is able to take advantage of a range of delegated powers, financial incentives and special arrangements, including the ability to accept postal applications for Green Form advice and assistance.

It is important that there should be proper control over public funds spent on the provision of legal aid. The Green Form scheme has recently been the subject of alleged abuse and in some cases even fraud by solicitors. The Legal Aid Board and the Lord Chancellor's Department are working closely together to improve control over the scheme and to identify and act upon cases of alleged abuse more quickly. Legal aid franchising is seen as an important tool in improving control by providing additional assistance and additional assurances about solicitors' working practices. To relax the requirements for firms which have not met the criteria for a franchise would run contrary to that aim.

The noble Baroness made reference to difficulties for the prisoner in finding authorised persons and the difficulty of whether the prisoner has someone who is appropriate and can properly represent his case. If the prisoner cannot find an authorised .person to visit the solicitor, he may ask a non-franchised solicitor to visit, for which I understand the solicitor would be paid, or he may choose a franchised solicitor. I rest my case. I hope that that was understood.

Baroness Mallalieu

My Lords, I have great sympathy with the Minister but it would appear that she has absolutely no sympathy with those who have a non-franchised solicitor and no one they can appoint to send for them. Those people will still face considerable difficulties. They will include people, for example, who send cases to organisations such as Justice. I shall not divide the House at this hour but I am concerned that there is a lacuna which affects those people. My only encouragement from what the Minister has said is that the position will be kept under review. I hope that she and the department will listen sympathetically, once the commission is up and running, to representations from organisations such as Justice which, it seems to me, are at the present time needlessly having to incur expense in travelling when they could be using legal aid money to give advice, which is what they should be able to do.

In the circumstances, I shall withdraw the amendment but I hope that the noble Baroness will keep an open mind on those people who fall outside the present provisions. I beg leave to withdraw the amendment.

Baroness Blatch

My Lords, before the amendment is withdrawn. I have reread the note before me and I should put on record a rather crucial word that I missed out earlier. The solicitor who has been chosen to act as the authorised person to go to visit the solicitor would not be paid if a non-franchised solicitor was chosen. However, of course the choice is there to use a franchised solicitor to act as the visitor.

Amendment, by leave, withdrawn.

Schedule 1 [The Commission: further provisions]:

Baroness Blatch moved Amendment No. 11:

Page 23, line 36, leave out from ("The") to end of line 43 and insert ("Commission shall—

1. (a) pay to members of the Commission such remuneration,
2. (b) pay to or in respect of members of the Commission any such allowances, fees, expenses and gratuities, and
3. (c) pay towards the provision of pensions to or in respect of members of the Commission any such sums,

as the Commission are required to pay by or in accordance with directions given by the Secretary of State.").

The noble Baroness said: My Lords, in moving Amendment No. 11, I wish to speak also to Amendments Nos. 12, 13, 14, 15, 16, 17, 18 and 20.

The Treasury has decided to assume a more strategic role in relation to the oversight of non-departmental public bodies, their funding and their pay arrangements. As part of this process it is looking at ways of withdrawing from its current role in approving the pay arrangements and so forth of such bodies. With this in mind, it does not wish to acquire responsibilities in this respect for any additional NDPBs. Amendments Nos. 11, 13 to 17 and 20 therefore delete the references to the consent of the Treasury in relation to the proposed arrangements for paying the commission and its staff, the numbers of staff which the commission may employ and their terms and conditions of service. In preparing the amendments to make the necessary changes to the Bill's provisions, we came to the conclusion that there was no reason why the commission should not in fact handle the calculation and processing of the salaries and pension arrangements of the members of the commission. Amendment No. 11 therefore also makes this change. Essentially, under the new paragraph 3(1) of Schedule 1, the Secretary of State will determine, in broad terms, what salaries or pension arrangements may be made, and the commission will make the necessary payments in accordance with his directions. His directions can, of course, be as general or as precise as are required; for example, a direction could fix a particular salary or it could require a scheme for the payment of salaries and expenses to be set up.

Finally, by virtue of the transfer of functions (Treasury and Minister for the Civil Service) Order SI 1995/69, the Minister for the Civil Service assumed on 1st April certain of the Treasury's responsibilities for superannuation and pensions. Amendments Nos. 12 and 18 reflect this change by substituting references to the Minister for the Civil Service for the reference to the Treasury in paragraphs 3(3) and 5 of Schedule 1. I beg to move.

Baroness Blatch moved Amendments Nos. 12 to 18:

Page 23, line 46, leave out ("Treasury") and insert ("Minister for the Civil Service").

Page 24, line 3, leave out ("(2)") and insert ("(1) (c)").

Page 24, line 9, after ("may") insert ("direct the Commission to").

Page 24, line 10, leave out (", with the consent of the Treasury,").

Page 24, line 13, leave out ("and the Treasury").

Page 24, line 18, leave out ("and the Treasury").

Page 24, line 23, leave out from ("The") to second ("may") in line 24 and insert ("Commission shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he").

7 p.m.

Lord Harris of Greenwich moved Amendment No. 19:

Page 25, line 22, at end insert: ("() In any such report the Commission may, on the basis of their consideration of cases, make such recommendations to the Secretary of State as they consider necessary for changes in the law and procedures.").

The noble Lord said: My Lords, the House will recall that we discussed this matter in Committee on an amendment moved by the noble Lord, Lord McIntosh of Haringey. It appeared to me at that time that it was possible to try to frame some form of compromise which might be more acceptable to the Government. That being so, I wrote to the noble Baroness and made some suggestions as to how the matter might be handled.

The purpose of the amendment that I have tabled can be summarised extremely briefly. Should the commission have the power to report to the Secretary of State if, after its consideration of a case or cases, it believes that there should be a change in the law or in procedures? We think that it should have such a power. The amendment lays down that the commission can do that in the course of preparing its annual report to the Home Secretary.

It seems to me to be highly desirable that the commission should have an explicit power to report to the Secretary of State spelt out in statute. I believe that the public interest would be served were that to be done. I very much hope that the Minister will be able to indicate that the Government are prepared to look on the matter favourably. I beg to move.

Lord McIntosh of Haringey

My Lords, I was grateful to receive a copy of the letter that the Minister wrote to the noble Lord, Lord Harris, on 22nd June on this issue which, as he said, follows Amendment No. 62 which I moved at Committee stage. I was particularly grateful to read her assurance that the commission will have an ability, which I understand is to be spelt out in statute not today but at Third Reading, to comment on how it sees Clauses 9 to 24—which are the guts of the Bill—working in practice.

I agree that it is not desirable to treat the commission as a rolling Royal Commission on Criminal Justice. That would be inappropriate for its composition, powers and responsibilities. However, it is entirely sensible for it to be responsible for looking at the way in which miscarriages of justice are, we hope, being reduced and any obstacles to the reduction of miscarriages of justice, and for those views to be spelt out in the annual report and encouraged by statute. I shall listen with eager anticipation to what the Minister has to say.

Baroness Blatch

My Lords, as promised, I looked at this issue very carefully in the light of the discussions we had on this point during Committee and the proposal which the noble Lord, Lord Harris, kindly made available to me subsequently. I have concluded that there would be some merit in making specific reference in the Bill to make it clear that the commission may comment, if it thinks fit, in its annual reports to the Home Secretary on the sufficiency of Clauses 9 to 24 of the Bill (those which set out its role, functions and powers) and the way in which it believes they are working. I propose, therefore, to bring forward an amendment at Third Reading to that effect.

Lord Harris of Greenwich

My Lords, I am most grateful. That meets the point entirely. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 20:

Page 26, leave out lines 2 to 4 and insert: ("11. The Secretary of State shall defray the expenses of the Commission up to such amount as may be approved by him.").

The noble Baroness said: My Lords, I spoke to Amendment No. 20 with Amendment No. 11. I beg to move.

Schedule 2 [Minor and consequential amendments]:

Baroness Blatch moved Amendments Nos. 21 and 22:

Page 26, line 40, leave out ("5. In section 12 of the Courts-Martial (Appeals) Act 1968") and insert:

("5. — (1) The Courts-Martial (Appeals) Act 1968 shall be amended as follows. (2) In section 12").

Page 27, line 4, at end insert:

("(3) In section 28 (evidence) — (a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute— (c) receive any evidence which was not adduced at the trial.", (b) for subsection (2) (duty to receive evidence in certain circumstances) substitute—

"(2) The Appeal Court shall, in considering whether to receive any evidence, have regard in particular to—

1. (a) whether the evidence appears to the Court to be capable of belief;
2. (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
3. (c) whether the evidence would have been admissible at the trial on an issue which is the subject of the appeal; and
4. (d) whether there is a reasonable explanation for the failure to adduce the evidence at the trial.", and

(c) in subsection (3), after "any" insert "evidence of a".").

The noble Baroness said: My Lords, I spoke to these amendments with Amendment No. 4. I beg to move the amendments en bloc.

Schedule 3 [Repeals]:

Baroness Blotch moved Amendment Nos. 23 to 25:

Page 29, line 39, at end insert: ("In section 23(3), the words following "compellable".").

Page 29, line 40, at end insert: ('1968 c. 20.The Courts-Martial (Appeals) Act 1968. In section 28(3), the words following "compellable".").

Page 30, line 4, at end insert: ("In section 25(3), the words following "compellable".").

The noble Baroness said: My Lords, I beg to move Amendments Nos. 23 to 25 en bloc.