Criminal Appeal Bill

HL Deb 15 May 1995 vol 564 cc298-329

3.8 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that this Bill be now read a second time. The Bill is a measure of very great importance for it goes to the very heart of our criminal justice process, to its effectiveness and its integrity, and to the public's confidence in the effectiveness and lightness of that system. We all share a desire to see our criminal justice system process operating to the highest possible standards of fairness and integrity. We all share the goal of a system that wherever possible prevents miscarriages of justice in the first place and which is capable of delivering swift and effective remedies when things have not worked out as they should.. The Bill will help us achieve these goals.

The Bill is designed to reinforce and extend the powers of the courts in criminal appeals and to establish a new and independent system for identifying and correcting miscarriages of justice. In so doing, the Bill implements some of the key recommendations made by the Royal Commission on Criminal Justice in July 1993. I pay tribute to the manner in which that wise and eminent body under the chairmanship of the noble Viscount, Lord Runciman of Doxford, has illuminated the way forward in this major area of change. With the benefit of the consultations which we undertook following publication of the Royal Commission's report, we are able to bring before your Lordships' House legislation which will, I believe, be of immense, and lasting, public benefit.

I now turn to the detailed content of the Bill. Part I clarifies and strengthens the powers of the respective Courts of Appeal in England and Wales and in Northern Ireland. All the provisions either respond to the recommendations of the Royal Commission or improve the Courts of Appeal's operations in other ways.

The Bill places an appeal against conviction on a point of law on the same footing as other appeals against conviction and sentence. Leave to appeal in such cases will therefore be required in future, save where the trial judge has certified the case as fit for appeal. This provides a sensible mechanism which will filter out those appeals on a point of law which are without obvious merit.

The Bill clarifies the grounds for allowing and dismissing an appeal. It replaces the current formula which involves three confusing and overlapping grounds with a simple test. Under the Bill, the court will allow any appeal where it considers that a conviction is unsafe. It will dismiss any other appeal. This simple test effectively consolidates the existing practice of the Court of Appeal. I was delighted to see that the noble and learned Lord the Lord Chief Justice welcomed it when the Bill was introduced in another place earlier this Session.

The Bill lowers the threshold for the admission of fresh evidence by the Court of Appeal along the lines recommended by the Royal Commission and provides a means for beginning or continuing an appeal on behalf of a person who has died.

The Courts of Appeal in England and Wales and in Northern Ireland respectively will be able to direct the new commission to investigate certain matters relating to an appeal before the court on its behalf and to report its findings to the court. Although we believe that this power is likely to be needed only rarely, it represents an important addition to the court's powers to remedy wrongful convictions.

Part II of the Bill deals with the establishment of the criminal cases review commission. At present, the power to refer cases to the Court of Appeal where a miscarriage of justice may have occurred lies with the Secretary of State. But, as I believe we would all now agree, this is not the most appropriate place for such powers to lie. A fresh approach is required in which these powers are exercised by a new, and independent, body; hence the creation of the commission.

The commission will be constitutionally separate from, and independent of, both government and the courts. It will examine cases in England and Wales and Northern Ireland and determine whether they should be referred to the courts in the respective jurisdictions. It will be able to refer any conviction or any sentence, or both, to the relevant court. And it will be able to refer summary cases as well as those which were tried originally on indictment. The commission will be accessible and open. It will have strong and effective investigative powers and it will be well resourced to carry out its task.

The final decision on any case which is referred will continue, however, to rest with the courts—the relevant Court of Appeal, if the case was tried originally on indictment, or the Crown Court, or a county court in Northern Ireland—following the referral of a summary case. The Government believe that this is the right division of responsibilities, the commission investigating and referring and the courts determining the resulting appeals.

The members of the commission will be appointed by Her Majesty the Queen on the recommendation of the Prime Minister. All appointments will be publicly advertised and candidates selected based on their ability to do the job in hand. At least one-third of the members will be required to be legally qualified and two-thirds must appear to the Prime Minister to have experience or knowledge of the criminal justice system. One member, at least, must have relevant knowledge or experience of the criminal justice system in Northern Ireland. We believe that given their requirements, members of the commission will between them bring as wide a range of relevant knowledge and skills to the work as it is possible to provide. And they will need all of their skills, for the task which they face is a difficult and complex one.

The financial memorandum in the Bill sets out our best estimate of the additional costs involved in setting up the commission. I believe it sufficient to say therefore only that we believe that the commission will be properly resourced and able to deal with its anticipated workload as efficiently and as effectively as possible. We believe it possible, at least initially, that the commission may receive up to twice the number of representations as are made to the Home Office and the Northern Ireland Office at present. The commission will need to employ up to 60 staff. That is about three times the number currently engaged in such work within my department and that of my right honourable friend the Secretary of State for Northern Ireland.

The recruitment of its staff will be a matter for the commission but we expect that it will comprise, like the membership of the commission, a broad mix of legal, investigative and administrative skills and experience. These posts will, like those of the members of the commission, be filled following open advertisement.

In establishing a strong and independent body we have not lost sight of the need to ensure that the commission is fully accountable for its work. That is a necessary counterpart to its independence. The Bill contains provisions that will require the commission to report annually to the Secretary of State. It will also be required to keep proper accounts. Both its annual report and its audited accounts will be laid before Parliament.

The commission, like other non-departmental public bodies, will have to work within the budgetary requirements imposed upon it. The Secretary of State will agree with it a corporate plan establishing its operational goals and levels of performance. Thus the commission will be fully accountable for the work which it does.

My right honourable friend the Home Secretary will continue to be responsible for the law under which the commission will operate but he will take no part in the day-to-day decisions and administration of the commission.

At present, the only means by which miscarriages of justice in summary cases can be corrected in England and Wales and Northern Ireland is the exercise of the Royal Prerogative of Mercy. But although a free pardon removes the effect of the punishment, it is clearly unsatisfactory that the Royal Prerogative of Mercy does not quash or reverse the conviction. That is something only the courts can—and should—do. The Bill therefore provides, for the first time, for summary convictions, following investigation, to be referred to the Crown Court in England and Wales and to a county court in Northern Ireland.

However, many summary cases are very straightforward. They do not need the kind of detailed investigation which the commission will undertake before referring cases to the courts. For these, the Bill provides in Part III a very simple and straightforward remedy by extending the existing powers of the magistrates' courts in England and Wales to reopen a case to rectify earlier errors. At present, only the cases of those who pleaded not guilty to an offence at trial can be reheard in this way. The Bill enables magistrates' courts to reopen cases irrespective of the plea made at trial or the time which has elapsed since the case was heard provided that this would be in the interests of justice. The Bill makes comparable provision for Northern Ireland. This is an entirely new power for the Province.

In view of the many changes that will be made as a result of this Bill, we have also considered whether changes should be made with regard to the availability of the Royal Prerogative of Mercy. We have concluded, however, like the Royal Commission before us, that this would still be needed for the exceptional case. The Bill therefore empowers the commission to refer any case to the Secretary of State for him to consider recommending the exercise of the Royal Prerogative of Mercy and to give him its reasons when making such a referral.

It is necessary, however, to guard against the possibility that the role of the commission, and its responsibilities for investigating and referring cases to the courts, may be undermined by the Secretary of State's continuing capacity to receive petitions for a free pardon from others besides the commission. The Bill therefore also enables the Secretary of State, when considering whether he should recommend the exercise of the prerogative in relation to any conviction, to refer any matters to the commission for its opinion and then to treat that opinion as conclusive of the matter referred. This avoids the need for parallel investigations into the same matter having to be undertaken by two different authorities. And it ensures that any necessary investigation into the soundness of a conviction in a relevant case will be made by a body empowered, and resourced, to consider whether a miscarriage may have occurred.

The Bill gives the commission all the powers that it will need to carry out its investigations effectively and thoroughly. It will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf and in accordance with its directions and, if necessary, under its supervision; require the appointment of an investigating officer from a different force or other public body from that which investigated the crime originally; insist that it approves the choice of the investigating officer before an investigation takes place; direct that any investigating officer cease to act as such and that he be replaced by another if his performance is not satisfactory; make its own inquiries, commission its own expert opinions and tests; and obtain access to documents held by police forces and other bodies. The commission will also be able to obtain relevant papers and other material held by my right honourable friends the Home Secretary and the Secretary of State for Northern Ireland as a consequence of their having considered possible miscarriages of justice cases under their existing powers. It will be clear from that that we expect the commission to take charge of the investigations carried out on its behalf. It will be the commission which will be responsible for investigating possible miscarriages of justice and for evaluating the results before deciding whether to refer.

The Bill requires the commission to be satisfied before making a reference that there is some new element—whether argument or evidence in conviction cases, or argument on a point of law or information in sentence cases—which the courts have not previously considered and which gives rise to a real possibility that the conviction or sentence will not be upheld by the relevant court so that it is of sufficient weight, in the context of the whole case, to merit referral. The Government believe those to be broad and sensible criteria. And they clearly define the boundaries between the commission's functions and those of the courts. We can see no useful purpose in the commission referring any case in which there is nothing new for the courts to consider.

The commission will give its reasons to the courts for referring the case. But that will not amount to a recommendation on the merits of the resulting appeal. As I indicated, that will be entirely a matter for the courts to determine in accordance with their normal powers and procedures.

As the House, I think, already knows, the Government agree with the Royal Commission that those seeking a review of their case by the commission should be kept properly informed of the progress of any inquiries being made into their case and that they should be given a full and reasoned explanation of any decision not to refer their case to the courts. The Bill therefore provides for the commission to give a statement of its reasons to the court when referring a case—which it will copy to the parties to the resulting appeal—and its reasons to the convicted person when it decides not to refer.

The extent to which the commission will disclose information in other circumstances will be a matter for the commission itself to decide. As it will be conducting investigations, not legal proceedings, questions of disclosure will fall to be dealt with accordingly. It will also be able to keep applicants informed of the progress made in investigating their cases, and to disclose information to them so that in the interests of fairness applicants will be able to make further representations in the light of matters found by the commission.

But as possible miscarriages of justice often raise sensitive matters, their investigation requires careful handling. The Bill accordingly makes it an offence for a member of the commission, a member of its staff, or an investigating officer, to disclose any information gathered by the commission in the course of its activities, save in the circumstances set out in the Bill. The gateways for disclosure provided in the Bill are, however, sufficient to enable the commission, where it thinks fit, to disclose relevant information in the way I have indicated today.

The Criminal Appeal Bill is a very important Bill. The public look to us to create a criminal justice system which is strong, effective and fair; one where the innocent have nothing to fear; one in which the guilty are rightly punished; and one, above all, in which all can have confidence. The Bill represents a further step towards making our system the best it is possible to provide. I commend the Bill to the House.

Moved, That the Bill be now read a second time.— (Baroness Blatch.)

3.24 p.m.

Lord McIntosh of Haringey

My Lords, I hope that I shall be the first of many to welcome the Bill. As in another place, it has been welcomed by those on all sides of the House. The Opposition did not divide against it on Second Reading in another place, not that we should ever dream of doing so here.

As the Minister said, it is a very necessary and important Bill and it is long overdue. Without going any further back into history, we must pay tribute to Mr. Kenneth Baker for his response to the miscarriages of justice which became apparent during his term of office as Home Secretary and for his wisdom in appointing the noble Viscount, Lord Runciman, as chairman of the Royal Commission. Unfortunately the noble Viscount has obligations today in Paris and he has asked me to express his apologies to the House for not being here, but he hopes to take part in the later proceedings of the Bill.

The Runciman Commission report two years ago received a very wide welcome; indeed, it was largely welcomed by the Government. We appreciate that. Of course we regretted that some of the recommendations of the Royal Commission were implemented in the Criminal Justice and Public Order Act last year; but this recommendation—which in many ways is the most important of all the Runciman recommendations—was not included in that Act and is therefore a year later than it might otherwise have been. Indeed, it is no secret that we were proposing to table amendments to the Criminal Justice and Public Order Bill to incorporate a commission or an authority very much along those lines. We were deterred only by the publication in April last year of the very fair and excellent Home Office discussion document which forms the basis of this Bill.

The fact that it is necessary and long overdue does not mean that it is an easy matter for which to legislate. The relationship between any independent authority of this kind and, in particular, the Court of Appeal is very tricky to establish and very tricky to maintain. It is essential that the Court of Appeal and the commission should have a mutual respect for and clear understanding of each other's role in order that they can operate effectively what is really rather like riding a tandem.

It is also extremely important—and I shall return later to this issue—that they should both have the complete confidence of the public and all those involved in the criminal justice system. I have some reservations about the ability of the Bill as drafted to provide that confidence. But in general it seems to us that this attempt to redefine the role of the Court of Appeal and to relate it to the new independent commission is very much along the right lines.

Of course, the existing system was never static. It underwent a number of changes during its life, some of which were very welcome, while some were less welcome. Sir John May, in his second report on the Maguire case—he was also a member of the Royal Commission—talked about the self-imposed limits which the Court of Appeal set itself. It is well known that C3 in the Home Office, fulfilling the role which it is now proposed that the commission should fill, was essentially reactive rather than proactive: it responded only to recommendations rather than carrying out its own investigations.

The result of that has been that, as the Royal Commission said at paragraph 11.9 of its report: the role assigned to the Home Secretary … is incompatible with the constitutional separation of powers as between the courts and the executive". That is the very serious defect in our existing law which this Bill is designed to remedy.

If, therefore, the Bill is to succeed as fully as it might do—and we are very keen for it to do so; indeed, we are most keen to be constructive in our approach to the Bill at all stages—there are a number of defects to which I have to draw attention and which I believe will need to be considered most carefully. If I devote the bulk of my speech to those defects, that does not mean that I believe that the Bill consists only of defects.

The first defect must concern the appointment and the membership of the commission. The procedure proposed is that the chairman and the members of the commission should be appointed by Her Majesty on the recommendation of the Prime Minister. The analogy for that is the procedure for the appointment of Lords Justices of Appeal. I am not in any way going to criticise that procedure except to say that it is very private; it is not at all open. There is no scrutiny of any kind of the appointment of Lords Justices of Appeal and perhaps there should not be. But such a commission, if it is to maintain and deserve public confidence, ought to be rather more open. We ought to consider whether there should be some sort of independent parliamentary scrutiny of the membership of the commission rather than the procedure proposed in the Bill. That is the first problem that I have with the appointment of the commission.

There are also rules laid down in the Bill for the membership of the commission. Fundamentally, such people would need to have a knowledge and understanding of the criminal justice system. My first reaction to that is to hope that it does not mean that a knowledge and understanding of the criminal justice system are equated with legal training. Indeed, there are many people other than lawyers who are involved in the system, who are knowledgeable about it and who ought to be included in such a commission. I shall not put up with any mutterings on the matter from my noble friend the Leader of the Opposition who is sitting behind me. It also occurs to me that the commission's clients are in fact those who have been accused and convicted of crimes. Therefore, there ought to be some attempt to ensure that the membership of the commission does not include people who have been convicted of crimes but does include people who come from the same social and ethnic background as those who are in the end their clients; in other words, the commission should be a good deal more open than I believe the Government propose. I see that the noble Baroness wishes to intervene. I give way.

Baroness Seear

My Lords, surely the noble Lord cannot possibly mean that villainy is confined to one class.

Lord McIntosh of Haringey

My Lords, of course I do not. But I believe that the noble Baroness would agree that the range of social class among villains is much wider than that of lawyers.

A Noble Lord

Oh, no!

Lord McIntosh of Haringey

My Lords, the second, and perhaps the single most important, issue on which we question the judgments made in the Bill concerns the investigatory role of the commission and how it will go about that task. I was interested to note that the Minister made virtually no reference to that in her opening speech, although she must know that it is the issue which has caused by far the greatest anxiety. Indeed, not only Justice and Liberty but also the Bar Council and the Law Society have all referred to the matter with varying degrees of discontent.

The Bill provides that the investigation should be carried out on behalf of the commission by members of public bodies. "Public bodies" are defined in the Bill so as to include a wide range of bodies other than the police. But the Explanatory and Financial Memorandum to the Bill makes it quite clear that it is intended that the great majority of investigations carried out on behalf of the commission will be undertaken by members of police forces. Investigations of officers of other public bodies are expected to be very rare, so the impact on the resources of such bodies will be minimal.

I question whether that is right either as a prediction or as a prescription. I question whether it is right that there should be such a firm presumption that virtually all investigations should be carried out by the police. There are many other investigative skills which are not necessarily those of the police and which ought to be involved in the investigations carried out by the commission. For example, investigations of fraud very often require the skills of the accountancy profession, although I agree that that is not the concern in this case. However, the investigative role of Customs and Excise is very important in a number of cases and, indeed, in criminal cases. The role of forensic scientists—and the Royal Society of Chemistry has made that case effectively—is important in the investigation of miscarriages of justice. Still more, I doubt whether it is right, as the Bill proposes, that the investigation should in general be carried out by the police force that was responsible for the original investigation.

I appreciate that during the passage of the Bill in another place some amendments were made which increased the power of the commission to veto investigating officers proposed to it by the chief of police. But, nevertheless, it seems to me to be fundamentally in conflict with the requirement that there should be public confidence in the commission that it should be expected very largely to go back to the original police forces which were responsible for the investigation now being challenged and expect them to carry out the reinvestigation. It seems to me to go beyond the expectation that people will have of the integrity and independence of the investigation.

I am not impressed by the analogy which is made with the Police Complaints Authority. That authority contains a number of dedicated and skilled people, but the effect of the Police Complaints Authority over the years has been that 90 per cent. of complaints have resulted in no disciplinary action. I cannot believe that that is a good analogy for our new commission.

We are told that to go back to the original police force is right because it is cheaper and because the investigators need police power and accountability. However, I suggest that those objectives could be achieved in other ways. In particular, I should like to suggest that at least part of the investigative work commissioned by the commission should be undertaken by its own staff; in other words, even though some of the work will have to be carried out by police forces, nevertheless, the bulk of it should be done by people who are working for the commission, who are responsible to the commission and, indeed, who are members of its own staff. Where that is not the case, the presumption should be that, if the investigation is carried out by the police, it should be carried out by a force other than the one which carried out the initial investigation.

The third major issue which we have to consider is disclosure. There is a peculiarity in Clause 17 about disclosure by the Secretary of State to the commission itself which will have to be subject to amendment later on. But the most important provisions on disclosure are found in Clauses 23 and 24. In November of last year the Divisional Court in a judgment on the Bridgewater case said that applicants should be able to see and comment on evidence on which they have been or might be refused. It was said that that was an important principle of fairness. That judgment is not overturned by the Bill. But the fear must be that the formulation of Clauses 23 and 24, which turn disclosure on its head and put the primary emphasis on confidentiality, with only exemptions proposed in Clause 24, will weaken the power and will of the courts and of the commission to make the necessary disclosures to applicants. Therefore, the fear is that the provisions will weaken the Divisional Court ruling in Hickey and others.

The fourth major query which we have: is on what the Minister called the simple rule that the court believes that the conviction is unsafe. That is not what Runciman said. The phrase used by the Royal Commission was "is or may be unsafe". The existing rule used by the Court of Appeal is "unsafe or unsatisfactory". We can agree that the words "or unsatisfactory" do not add significantly to it. But surely there is a need for a lower test than "is unsafe". In saying that, I have the support of the Bar Council and the Law Society, as well as Justice and Liberty.

Fifthly, surely there is a need for a lower test which may not cause the conviction to be quashed immediately but could, for example, trigger a retrial. Surely there is need for a recognition of the phrase "lurking doubt" which arose in the first place in 1968 or 1969 in the Cooper case. There is a need for recognition that something has to be done if there is a material irregularity in the investigation or the trial. We shall be putting down amendments about the criteria for quashing the conviction at a later stage. Indeed, I draw attention now to the minority report by Professor Michael Zander to the Royal Commission. It seems to me that there is a great deal of wisdom in his views about the necessity for correcting not only what happened at the trial but also looking at serious defects in the pre-trial proceedings.

Sixthly, there is the issue raised in Clause 13 about new evidence or argument. I wonder whether it is not more suitable to ask whether the issues have been adequately raised or adequately considered at the original trial; in other words, not to rely simply on new evidence. I return now to relatively minor matters because I appreciate that I must bring my remarks to an end—the question of legal aid and preparing cases for submission, which has been raised by a number of those concerned, and the question which the Law Society has raised about the leave to appeal, which is the issue in Clause 1 of the Bill.

It is clear that there is—I am sure that there are other issues—a great deal of meat in this Bill which is, I accept, an honest and honourable attempt to deal with the great problems which exist with the present system. There is still amendment to be done and it is the role, I suggest, of your Lordships to undertake that task. We shall do our best to help that.

3.43 p.m.

Lord Rodgers of Quarry Bank

My Lords, as the House will recall, this Bill was apparently an afterthought in the Government's legislative programme for this year, being identified only in the vaguest way in the gracious Speech. We are nevertheless glad to see it. It is, as the Minister said today, a Bill of great importance.

When the noble Baroness referred to the Bill in the debate on the Address, it sounded like a short and simple measure. The Bill as drafted is rather more substantial, but not the worse for that. In another place it took a whole day on Second Reading and virtually a whole day on Report, with over 12 hours in Committee in between. I would not expect your Lordships to be quite so prodigal with your time, but there is much that deserves detailed scrutiny and the Bill could be improved by amendment.

In her speech on 22nd November last, the noble Baroness asked for a general welcome for the Bill. That welcome was given and is being repeated today. As the noble Lord, Lord McIntosh, said, there was no vote on Second Reading in another place, which is unusual enough especially with a Home Office measure. That, I think, is a way of judging the extent to which it has support across all Benches. However, I hope that a general welcome and support from all sides will produce a reciprocal response from the Minister. I hope that, as we are supporting her Bill sympathetically, she will in turn consider supporting our amendments. It is, after all, a constitutional duty of this House to improve Bills and I am sure that she will have an opportunity of sharing in that process.

When I spoke previously in your Lordships' House the noble Baroness gave me what I think I must call a thorough ticking off. I had the temerity to be critical of the Home Secretary in relation to penal policy. I had criticised his attitude to what I called "saloon bar populism" and said that in penal matters his rule appeared to me to be a case of, Give me a misconceived perception and I will yield to it". — [Official Report, 27/4/95; col. 1089.] The Minister is a loyal and doughty fighter—I have no quarrel with that—and she admonished me. The noble Lord, she said, referring to me, has, not for the first time, personalised much of what he said". — [Official Report, 27/4/95; col. 1094.] Of course she was right; indeed I did that. However, we do not have an anonymous system of government in this country. We have heads of great departments of state who exercise personal authority. They like to stamp their own style and ideas on their departments. That is how we work; that is how governments of all parties work. Indeed, it is how the Minister herself works. She is a strong and positive Minister. Things are different because she is there. Therefore, I shall continue to personalise Home Office policy when it is clearly policy made on the initiative of the Home Secretary. Indeed, if in response to the Minister's strictures I ceased doing so, I would be unable to praise the present Home Secretary for bringing this Bill forward. Other Home Secretaries could have brought before Parliament provisions for a criminal cases review commission — indeed, the noble Lord, Lord McIntosh, referred favourably to Mr. Kenneth Baker—but they did not do so. Michael Howard has done so, and with the Minister's permission I thank him for that.

Most of the points that I wanted to pursue on the Bill are matters for Committee. They need detailed and precise discussion. I would also like to hear the views of other noble Lords, both today and later, especially those with close experience of the criminal law. If the Bill is to be improved their views are crucial. There are only two points to which I wish to refer, as against the six of the noble Lord, Lord McIntosh. The first concerns the funding of the review commission. The noble Viscount, Lord Runciman, who chaired with such distinction—as is generally agreed—the Royal Commission on the criminal law, had offered in a lecture elsewhere some afterthoughts about its conclusions. He said: I wish we had argued more strongly the need to ensure that the new criminal cases review authority … is properly—which means abundantly—funded". I asked in the debate on the Address for Ministers to confirm that that would be the case. The noble Lord, Lord Mackay of Ardbrecknish, gave the undertaking. He baulked at the word "abundantly" but not at "properly". The Minister has used the same word today. But the Financial Memorandum is not reassuring. The net cost of the commission's accommodation and administrative overheads appears to be £3.5 million. That seems modest and I hope that it does not mean any restraint on the independence of the commission to make whatever provision it thinks necessary for its work. I agree that it is reasonable. One would take for granted that it must agree its budget with the Home Secretary from year to year, but I hope that the Minister in winding up today will confirm again that there will be no unreasonable restraint upon the money which the commission may spend.

However, much more worrying than the question of the cost of accommodation and administrative overheads is the assumption that the Bill will not give rise to extra demands on police resources. I find that difficult to believe. It would be very unfair if police forces received no extra help whatever when many are under great financial strain at present and some are reducing their services to the public.

My second point relates, as I am sure will the remarks of other noble Lords, to Clause 18 and, more generally, the question of who should carry out the investigations initiated by the commission and whether it should have discretion to appoint an in-house team.

In Committee in another place the noble Baroness's colleague, Mr. Maclean, said on this matter that the Government were not convinced that an in-house investigative team will be helpful or necessary. It would add significantly to the commission's costs and would not be an efficient use of resources. However, I can find no quantification of those costs. Ministers may say that it is not the main consideration, but they have introduced the idea of its relevance and it would have been irresponsible to do so without having relative data. I hope that later this afternoon the Minister can say—because there will have been time to check the figures—what "significantly" means. What estimate have the Government made of additional costs at the centre and the savings in police resources that may follow from independent investigation?

As to the principle of either an in-house team, which seems most practical, or a team hired for specific investigations, I hope very much that the Government will agree at the end of our debate in this House to an element of flexibility being built into the Bill. This is an independent commission. It will be independent of the Government and independent of the courts. The Government want it that way, and I am sure that your Lordships will want it that way. However, not everyone has faith in our system. If the commission fails to establish itself in the public eye as independent some of its purpose will be lost. Not everyone will feel that investigations undertaken by police forces will ever be wholly independent of the Government and the courts—what I have called "the system" in all its separate parts.

I do not understand why the option of alternative means of investigation should not be written into the Bill. If the independent commission found that an in-house team would be unhelpful or unnecessary—words which the Minister used in another place—of course it would not employ one. That would be its independent decision, not the Government's, as revealed in the omission from the Bill. At the very least there ought to be provision in the Bill for second thoughts by which, if the commission so desired, it could be given such further powers by statutory instrument. Neither the Minister nor this House, nor those who may compose the commission, can know how the process will work. We cannot know now how it could be most effective in its purpose. All I suggest to the Minister is that if that option were available, if necessary by statutory instrument, it could be taken up without resort to primary legislation, which would not be a sensible use of the time of this House.

I hope that the Minister will consider that possibility. As I say, it would introduce flexibility. It would be a reasonable compromise which might command wide support. It could make this, which is a good and welcome Bill, even better. In that spirit, I hope that the House will send the Bill on its way.

3.54 p.m.

Lord Taylor of Gosforth

My Lords, before I address the House on the Bill I hope that four Lordships will consider it right and appropriate if I make brief mention of the late Lord Goodman and say how sad we all are at his passing. I should like to pay a personal tribute to the enormous contribution he made to the law and to public life generally.

Noble Lords

Hear, hear!

Lord Taylor of Gosforth

My Lords, the Bill raises two issues of fundamental importance both for the individual and for the public as a whole. First, a sound system of criminal justice requires an appeal process which is accessible, reliable and comprehensible in order to safeguard the right of those charged with criminal offences to be punished only if the admissible evidence proves them to be guilty. That is in accord with the right to liberty enshrined in article 5 of the European Convention on Human Rights, the importance of which has been recognised by this House in passing the Bill recently presented by the noble Lord, Lord Lester of Herne Hill. In that regard, there are a number of respects in which the Criminal Appeal Act 1968 has been thought capable of improvement.

Secondly, public confidence in the criminal justice system requires a mechanism for dealing with alleged miscarriages of justice when fresh material comes to light after all conventional avenues of appeal have been exhausted. In that regard the Royal Commission recommended references back to the Court of Appeal by an independent body rather than, as hitherto, by the Home Secretary.

The Bill before us addresses both of those important issues. I am glad to say that I support it. In doing so I speak not only for myself but with the concurrence of a group of senior judges with great experience both in the practice of the criminal law and in the Criminal Division of the Court of Appeal whom I have consulted on both the policy of the Bill and its detailed provisions.

At the heart of any appeal system is the test to be applied when deciding whether a conviction should be quashed or upheld. Clearly, the Court of Appeal cannot, and should not, carry out a complete retrial of the case, acting as judge and jury and reaching its own conclusions as to the facts. The role of the Court of Appeal is rather to decide whether anything in the conduct of the trial or in any fresh evidence which has come to light casts doubt upon the safety of the conviction or whether the court is otherwise unconvinced that the verdict is safe. But the public also demand, and rightly so, that the guilty should be convicted and that their convictions should be upheld. The appeal court must therefore have a statutory test which provides the proper criterion for determining whether a conviction should be quashed or affirmed.

In its report the Royal Commission recommended that Section 2 of the 1968 Act ought to be redrafted, in view of the present overlap between the grounds of appeal and the confusion over the scope of the proviso to that section. Its recommendation that the court should decide upon the safety of the conviction has been broadly followed by the Government. The new test—whether the conviction is unsafe—will, in my view, be concise, just and comprehensible to the ordinary citizen without narrowing the present grounds of appeal. It will assist the Court of Appeal and those who appear before it. And it will help appellants to understand more readily what is at stake and the reasons for the court's decision.

There has been criticism of the fact that the precise test recommended by the Royal Commission has not been adopted. In my view, however, there is no merit in including in the test the words "or may be unsafe" since the implication of doubt is already inherent in the word "unsafe". A conviction which may be unsafe is unsafe.

I turn to Part II of the Bill. In some instances, even after a case has been considered on appeal, new evidence or a new factor comes to light which makes it necessary for further consideration by the Court of Appeal. The other major limb of the Bill meets that requirement by the establishment of the long-awaited criminal cases review commission. As your Lordships have heard me say before, I very much support the setting up of an independent body to investigate alleged miscarriages of justice, and I was delighted when, seemingly at the last moment, time was found by the Government for its establishment in the present legislative programme. The Court of Appeal will continue to be the final arbiter of the safety of convictions and it will be the commission's role to refer appropriate cases to the court. I believe that the need for a body independent of the government and the courts, whose task will be to consider and, where necessary, to investigate such cases is well established. In the other place, this aspect of the Bill was welcomed from all sides.

The commission will also provide valuable assistance to the Court of Appeal under Clause 14 of the Bill which empowers the court to commission investigations during the course of an appeal. In my view, although it will not be necessary to invoke it frequently, the demands of justice and efficiency call for such a power. It will allow the Court of Appeal to institute investigations other than by the parties themselves without the delay which would be caused by the dismissal of the appeal and subsequent application to the commission.

There are some subsidiary points to which your Lordships may wish to give consideration in Committee. The Bill provides an opportunity to clarify the provisions of Section 23 of the 1968 Act which deal with the admission of new evidence and I hope that the Government will soon be able to bring forward amendments. The power of the commission to refer sentence only cases to the Court of Appeal causes me some disquiet and was criticised in another place on the ground that the commission might in its early years receive a great number of applications of this nature which could leave it struggling to cope with the caseload it will inherit of allegedly flawed convictions, which is what the commission is essentially about.

There may also be an opportunity in the Bill to improve the procedures presently followed when a life sentence is imposed in a case of murder—in particular, regarding recommendations by judges as to the minimum term to be served. The current system for setting the so-called "tariff' period does little to enhance public confidence in our system and was recently criticised by the Court of Appeal. These are relatively modest reservations, however, and I strongly commend the Bill to your Lordships.

4.2 p.m.

Lord Alexander of Weedon

My Lords, I also warmly welcome this Bill. I do so both from my experience at the Bar and, more particularly, as chairman of Justice, the all-party law reform group which exists to promote law reform and maintain and enhance human rights.

In the criminal law, the consistent aim of Justice as an organisation is to improve processes so that they have the twin effects of increasing the prospects that the guilty will be convicted while improving safeguards against wrongful convictions.

Justice has experience over more than 30 years of looking into suggested miscarriages of justice. There is no other body which has existed to do so on a regular and structured basis. Not long ago Justice was described in The Times as, a place of last resort when official procedures have failed".

In the course of this extensive work, Justice became convinced many years ago of the importance of the creation of a review body, independent of the courts, the police and the executive, to examine complaints and initiate appropriate proceedings for appeal to the courts. We strongly so submitted to the Royal Commission on Criminal Justice, so well chaired by the noble Viscount, Lord Runciman.

We welcomed the clear and unanimous view of the Royal Commission that a new review body, wholly independent of government, was needed. So I warmly compliment the Home Secretary, Mr. Michael Howard, on his decision to implement the Royal Commission report. In introducing the Bill he said, We share a common interest in ensuring that our system is the best we can provide, that it contains all the necessary safeguards to minimise the possibility of a wrongful conviction, the most effective appeals procedures that we can devise, and the best machinery for investigating possible miscarriages of justice". Those are uncontroversial aims, but it is good to hear them so positively stressed. On the same occasion, the Home Secretary also said, We need a new investigative body that is constitutionally separate from, and visibly independent of, both Government and the courts. We also need to clarify and strengthen the powers of the Court of Appeal to identify and resolve doubtful cases at the earliest opportunity".—[Official Report, Commons, 6/3/95; col. 23.]0 These words demonstrate the Home Secretary's wholehearted commitment to the Bill, and no doubt its inclusion in the current legislative programme reflects his determination. I would like to thank him for his personal commitment to ensure this excellent and most positive development for improving criminal processes. I would also add that strengthening the procedures for guarding against miscarriages of justice serves to raise confidence in the criminal justice system as a whole. This is crucial in establishing guilt in cases where charges are properly brought home against an accused.

The Home Secretary rightly laid stress on ensuring that the machinery for the new commission was as good as it could possibly be. In this spirit, I should just like to comment on two aspects of the machinery which is created by the Bill. First, it is obviously important that the investigation should be efficient and should be seen to be independent. I welcome the fact that members of the review body will include a mix of lawyers and non-lawyers. The Royal Commission rightly said that the precise numbers and mix must depend on its workload. I also agree with the Royal Commission report that, in general, investigation should be carried out by police forces. But I also believe —it is again what the Royal Commission recommended—that the review body should have on its own staff people with relevant investigative experience. I believe that the machinery would work better if there were a small core of police officers, possibly seconded for a period from their current police service, who were a part of the central team.

My noble friend the Minister said in opening the debate that it is vital for the commission to have strong and effective investigative powers. I agree and welcome that commitment. But under the Bill at present the commission has no power to appoint its own independent investigators from its own staff in any circumstances. I think that there would be much to be said for its having at the very least a residual power to appoint independent investigators in particularly sensitive or complex cases. I know that an all-party amendment to provide such a power was narrowly defeated in another place, but I would hope that consideration would be given to this proposal again both by the Government and by your Lordships' House.

The second issue that I wish to raise relates to disclosure of evidence. In the past, the absence of full disclosure of evidence has been one source of miscarriages of justice, and also a major grievance to applicants whose cases the Home Office has refused to refer to the Court of Appeal. In summary, those applicants did not have the material which had been gathered in response to their complaints properly disclosed to them, nor any opportunity to answer the information which was influencing the Home Secretary in his decision. They met what was in many cases quite simply a brick wall. That was recognised by the Divisional Court in its judgment in Ex parte Hickey and Others last year. The court held that fairness required that applicants should be able to see and to comment on evidence which had previously been refused to them so that they could challenge its accuracy or make further representations. This is crucial to ensure that justice is done, and is seen by applicants to have been done. As the Divisional Court judgment said: Principle dictates that, absent powerful countervailing considerations, advance disclosure is required. It is required in the interests both of fairness and informed decision making. Without it an adverse decision may not be right; it will not be fair". This is a point of real substance. In one case with which Justice has been involved for more than five years, which relates to the conviction of a man called Sammy Davis for rape, many of those who have looked at the case believe that there are very real doubts as to whether he was guilty. But the Home Office did not feel it appropriate to disclose the result of their investigations to his advisers. In the Divisional Court case to which I referred and after disclosure of the evidence had finally been made, the court took the view that there was a clear ground for hearing an appeal as the conviction might be unsafe. This illustrates just how important it is that the advisers to the applicant should have an opportunity to consider the evidence.

Doubts have been expressed as to whether the provisions of Clauses 23 and 24 of the Bill preserve this emphasis. They would appear at first sight to provide for a general duty of confidentiality which is qualified by some limited exceptions. These exceptions are very general and do not specify the occasions or purposes for which disclosure is required. Concern was expressed about the provisions in another place. Ministers in response helpfully stated that the same approach which was established in the recent court judgment would in practice be followed, saying: In our view, the Commission will be governed by the same duty of fairness and by the resulting requirements of disclosure". So I welcome the clear statement today from my noble friend the Minister that the Government recognise that it is important in principle that information should be disclosed to the applicant. It is in fact elementary because only in that way can the applicant have the chance to answer new material and only in that way can the procedures of the commission be sufficiently transparent to be seen to be fair. I believe that exceptions, if they arise, should be rare.

I wish to refer briefly to one other point. As the noble and learned Lord the Lord Chief Justice pointed out, Clause 2 of the Bill provides that the Court of Appeal shall allow the appeal, if they think that the conviction is unsafe". Anxieties have been expressed as to whether that sufficiently covers the situation where the conviction might be unsafe; but, again, in another place the Minister in response—and I have no doubt that my noble friend will confirm this—stated that what is described as the "lurking doubt" test would still apply. The confirmation of the noble and learned Lord the Lord Chief Justice of his understanding on this was welcome. As he said, a conviction is unsafe if it may be unsafe and if that is clearly established so that no one is in any state of doubt, it is extremely welcome.

Before concluding, I should just like to state my support for the view expressed by the noble and learned Lord the Lord Chief Justice on the desirability of the Court of Appeal considering certain possible changes which affect those sentenced to life imprisonment. In particular, where the judge states in open court a "recommendation" that a prisoner should serve for a minimum period of years, that recommendation—albeit stated in open court—is not an order, as I understand the law, from which an appeal may be brought. I believe that the present position with regard to mandatory sentences and the executive procedures which are involved in implementing them is far from satisfactory in general. But I recognise that that is a wider topic than falls within the Bill. I ask that careful consideration be given to the proposal of the noble and learned Lord the Lord Chief Justice.

I end where I began. I warmly commend the principle of the Bill to the House and again express gratitude to the Home Secretary for the personal impetus he has put behind this most worthwhile reform.

4.13 p.m.

Lord Mishcon

My Lords, is it not amazing that it has taken until this year for us to consider a power that was vested in the Home Secretary to refer cases, where he saw fit, to the Court of Appeal because there was doubt about a conviction? All Members of this House have respect for politicians, even if those outside the House do not share it. However, how extraordinary that this power and right in regard to our system of justice should be reposed in the Home Secretary. How extraordinary that it should take until now for us to be considering powers to investigate where matters of miscarriage of justice occur.

I hope that your Lordships will not think this self-advertisement, but I am reminded that reference has been made to the report on the Maguire case by that fine judge, the right honourable Sir John May. In the Maguire case there was a conviction which was lifted only in 1991. I wish to read from page 67 of the report. Sir John May wrote in 1985: in May 1985 Lord Fitt initiated a debate in the House of Lords on the Maguire case, pressing the Government to reopen it. He was supported from all sides of the House and Lord Mishcon, Labour front bench spokesman on Home Affairs, made a new and specific request to the Home Secretary (although he said he was speaking in a personal capacity)". Then there is the quotation of what I suggested to the Home Office Minister at that time: to appoint independent scientific advisers to look at the evidence that was given and advise the Secretary of State whether there are grounds under the section [17 of the Criminal Appeal Act 1968] for him to consider that there is new evidence". Then in his report Sir John May takes us through the evidence that was given from the Home Office as to why that suggestion was not acted upon. I read from page 71, paragraph 11.43: On repeated requests to establish a scientific committee Mr. Stanton's advice was clear". In parenthesis, I may say that he was a grade 7 official in the C3 Division of the Home Office. The report quotes Mr. Stanton's advice: These approaches must continue to be resisted. We do not know what conclusions, if any, a committee of scientists might arrive at. There would be pressure for the Secretary of State to act on the basis of any recommendations (for example, referral) it might make, leaving potentially awkward decisions to be made, and setting a dangerous precedent. Arguably it remains up to the Maguires and their supporters to demonstrate a case, not for the Secretary of State to explore it himself'. That was in 1985. If that scientific committee had been appointed as scientific advisers to the Home Secretary on the Maguire case, would it have taken until 1991 for that miscarriage of justice to be redressed?

So I have a personal sense of satisfaction that we now have a Bill before us under which the investigatory work will be carried out, not by a politician but, with our usual reverence for the separation of powers, by an independent body that will have the power to investigate.

It is all very well to give bodies created by Parliament the power to do things. It is easy for us to put that permissive power on to the statute book. After all the publicity that has been given to grievous miscarriages of justice, the public will have great expectations that this body will deal promptly and thoroughly with applications and that it will have the power to investigate and the intelligence to reach proper decisions. Are we satisfied that, when the Bill becomes an Act of Parliament by the statutory instrument that the Secretary of State will be empowered to issue, this will be a body capable of carrying out this work?

I believe that the figure given was 730 cases per annum now being considered by C3 division of the Home Office. I believe I heard the Minister say in her very lucid account of the provisions of this Bill that provision was being made for that figure to be doubled, certainly in the first year, and perhaps even trebled. I thought that she said doubled, but let us take it for granted that it is to be trebled. That is not a bad estimate. One can imagine the number of people who will be encouraged to say, "My case is one of a miscarriage of justice. By the grace of God, there is now a commission to which I can apply".

One also has to add that cases now with C3 division will be passed on to the commission. Are we satisfied that we shall have people of sufficient ability and training to staff the commission? Not everybody is satisfied, if I may say so with deep respect, that the officials of the Serious Fraud Office are necessarily of the calibre that we expected. Nor is everybody satisfied that those who run the Child Support Agency are of the ability that we anticipated. I hope therefore that remuneration of officials of the commission will be adequate to attract people who are genuinely able to deal with the administrative work that will be required as well as with the investigative work.

It is not just a question of our having faith in the police. I hope that in this House we shall always state in regard to the police what is the experience of most of us; namely, that the majority of our police force are brave, decent, honourable people who are doing a most difficult job. Having said that, we all know from our own experience—and it is only human—that a minority do not live up to that reputation. The public are a little suspicious of any inquiry being handed over to the police when it relates to the propriety of police action.

We cannot do without the police on such inquiries and investigations. But it would be awfully sensible for people in the police force to think of this commission as a correct step in their career, be it for a period of five years or whatever, so that their loyalty is not to their local police force but, as my noble friend Lord McIntosh suggested, to the commission itself. That must be the right way of doing things, rather than just passing work out to the police. As was rightly said from the Liberal Democrat Benches, one has to take into account the fact that, so far as the police are concerned, they are over-burdened as it is. Unless we want —noble Lords will forgive the expression—slick, quick work done of a not very thorough nature, we really must see that this is not just a matter of referral to a police force, and certainly not to a force that is involved in whatever may be the inquiry.

In conclusion, if we are trying to build an edifice of justice within the system of which we are rightly proud, please do not let us think again in purely non-practical terms. The man or woman who will apply to this commission will not, in 99 cases out of 100, be very literate and will not understand the process. We have to realise that there will be no justice unless the application that is made, the reaction to the possible communications from the commission, the reaction to new evidence that is procured and the submissions that the case is a proper one for the Court of Appeal are assisted by lawyers. When we talk about being assisted by lawyers, there is no point in trying to escape the inevitable conclusion that in 99 cases out of 100 that must be done on legal aid. We must take that fact into account. Otherwise, if we set the system up without making proper provision for people to obtain justice, our attempts at justice are half-hearted.

4.26 p.m.

Lord Campbell of Alloway

My Lords, at this stage of the debate I shall be very brief, address just three points and put down a marker for an amendment. Like all other noble Lords who have spoken, I welcome this Bill. As to the statutory test under Clause 2, I had already made a very rough note that "what may be unsafe is unsafe". Then I heard the noble and learned Lord the Lord Chief Justice indeed say so. That is a sufficient test. With respect, I do not support the suggestion that was made that the test should be that it "may be unsafe".

However, from my own practical experience there are worries about the lurking doubt. In the case of Heibner— in which I was not instructed at the time and am not instructed now—it is on record that the Court of Appeal held expressly that there was a lurking doubt and refused the application. This is not the moment to take up your Lordships' time. The case is on record and may be consulted. Therefore, let us not suppose that the lurking doubt is wholly dispensed with. If anybody is interested, I could find the reference in my chambers.

Secondly, clearly the Home Office and the police must be under an obligation, a duty, to disclose all relevant material in accordance with the ex parte Hickey decision mentioned by my noble friend Lord Alexander of Weedon unless there are compelling reasons not to do so. That will require some careful drafting. In principle, however, I support everything that was said on that matter by my noble friend.

The third point is that, as my noble friend said, there should be some form of residual power to appoint an independent investigator—a staff member—in difficult or contentious cases.

The marker for the amendment that I wish to put down at the end of Part I as a new clause affects the jurisdiction of the Court of Appeal and is to the effect that, where a person makes an application on or before arraignment to quash an indictment, an appeal shall lie to the Court of Appeal from the decision of the Crown Court either refusing or granting the application. That is not a matter that I should argue at this stage and take up time with it. But it is a matter which has received the interest and, to some extent, the approval of my noble and learned friend the Lord Chief Justice on another Bill. In fact, it would save a considerable amount of delay and a considerable amount of expense. It would also, broadly speaking, accord with the broad requirements of the fair dispensation of justice.

4.31 p.m.

Baroness Mallalieu

My Lords, as, a practising member of the criminal Bar, I too welcome the Bill. I hope that the House will forgive me if a little of what I say is tinged with some personal unhappy experience. As a junior counsel, I was unhappily involved in the original trial of the Maguire family and their first rejected appeal against conviction. My client served many years of imprisonment before that injustice was recognised and acknowledged. More recently, I represented one of the Taylor sisters, both at the trial and later in the Court of Appeal. That was a case in which the failure of the Crown to disclose vital information to the defence emerged only after two young girls had served the first year of a life sentence. In that case, the miscarriage of justice was recognised and corrected by the Court of Appeal the first time round.

The need for a body such as that proposed by this legislation is now universally recognised. Victims of miscarriages of justice for many years have had to pin their hopes of righting what is a truly terrible wrong on attracting the attention and support perhaps of a dedicated lawyer prepared to work for nothing often over many years; or on capturing the attention and interest of an investigative journalist; or on the support of a Member of this House or another place who was prepared to take up the cause; or on a churchman who might have become interested in the case and was prepared to intercede; or, indeed, on the organisation Justice, of which the noble Lord, Lord Alexander of Weedon, is chairman and which, over some 30 years, has helped something of the order of 800 people a year who go begging for help when they see no other route to redress the wrong. Many people, of course, are simply dependent, or have been up to, now on family and friends and their efforts, and also, above all, on a great deal of good luck.

The proposed review body fulfils a real and urgent need. At risk of sounding as though I am carping, which I am not, perhaps I may just sound a few words of caution. Public expectations of this measure are very high. In fact, they are unrealistically high. Although the Bill can play an important part in fighting miscarriages of justice, such miscarriages of justice will still take place and there will still be many which cannot be corrected by this mechanism. It is just worth saying, as others have said before me, that every case in which a crime has been committed and the offender has escaped the due process of law is in itself a miscarriage of justice. This machinery, which is necessary and beneficial, cannot address those matters. It has to be looked at as part of a package which must include improved crime prevention, effective use of police resources and policing generally, and more assistance to the victims of crime.

There will still be miscarriages of justice which no body such as this can uncover or correct. We must be vigilant in looking at the way in which our criminal law is applied and is working to see where those danger areas are to be found. Perhaps I may give one example. In the legislation before this House in 1993—what is now the Criminal Justice Act—a number of changes were made which, for example, altered the rules in relation to corroboration and to the right of silence. When, for instance, a sexual complaint is made and only the accuser and the accused know the reality of the position, unless the accuser later admits that he or she has not told the truth, a miscarriage of justice will, or is likely to, remain uncorrected.

Having said that, the Bill must be part, in the public's perception, of an overall pattern of tackling both sides of the equation. It is essential that the public must have confidence in this body and indeed in the Court of Appeal. That confidence must be based, first, on the conviction that it is a truly independent body, independent of both government and the police, and, secondly, on the knowledge that the body is competent and has sufficient resources in order to carry out what will clearly in some cases be expensive operations. It may be necessary to instruct experts, find witnesses and take evidence. I am greatly encouraged by what the noble Baroness said about the adequate funding which, she maintains, will be available. But the public must be satisfied that the body will be fair, both in its composition and in its decisions—not just fair but seen to be fair.

When I started at the Bar in 1970, there was a notorious chairman of one of the busiest London magistrates' courts who, after he and his colleagues had been in retirement deliberating on a case for some time, was alleged to have told the defendant, "We think there is a doubt in this case but you are not going to have the benefit of it." That story may be apocryphal, but there is no doubt that the necessity for all parts of the criminal justice system not merely to be fair but to be seen to be fair is far more readily appreciated today by the judiciary at every level. I shall not say that it is impossible but it is difficult to find the bad tempered or obviously biased judges of yesteryear. But such fairness is also crucial because the press monitor the way in which justice is seen to be done in public and the public care about it.

So, with those points in mind, there are just four matters that I ask the noble Baroness to consider when she comes to reply. First, as other noble Lords have said, this review body will be under enormous pressure, particularly at the outset, from the number of cases likely to be referred to it. I echo the words of the noble Lord, Lord Mishcon, about the essential need for legal aid to enable applicants to prepare their applications to this body. It is precisely those who are inarticulate and ill educated or who may suffer forms of mental or other disability who are likely to be most prejudiced when trying to ensure that their application to this body is presented in such a way that it is selected for review. That seems to me to be one area in which, if legal aid is not available, there is a real possibility that miscarriages of justice may fail to be identified at the very start of the process.

Secondly, I echo what other noble Lords have said about the need for independence in relation to the police. I readily understand why the Government at this stage have opted for, at any rate, the majority of the investigations to be carried out by serving police officers. I am concerned that, particularly as time goes on—one knows this from other bodies where investigations are required—it is often the case that a pattern emerges in the numbers of cases coming before the body.

An in-house staff may be able to deal with matters very much more expeditiously and have considerably greater experience than police officers who are brought in for limited periods of time. I echo what other noble Lords, in particular the noble Lords, Lord Rodgers of Quarry Bank, Lord Alexander of Weedon and Lord McIntosh of Haringey, have said. At the very least let us see in the Bill flexibility which will enable at a future date in-house investigative teams to be set up where that seems appropriate.

The third matter I wish to mention is one on which I have been partly reassured by what the noble and learned Lord the Lord Chief Justice had to say. Together with both sides of the practising profession I was concerned about the substitution of the single unsafe test in the Court of Appeal. I was anxious, as many are, that there should be no raising of the threshold for a successful appeal. I hope that the Minister will be able to reassure those of us who are concerned about that matter. I understand that one of her colleagues in another place has been able to give that reassurance. It would be unfortunate if, in attempting to provide a single simple test, we were to lose, for example, the capacity of the court to deal with the lurking doubt case. It seems to me and to many other practitioners that if it appears that a conviction is unsafe the Court of Appeal should quash the conviction; if it appears that it may be unsafe there may well be good grounds for a retrial. The Court of Appeal has in recent years been using its power to order retrials more frequently with—I hope to be forgiven for speaking from personal experience—excellent results. In a retrial in which I appeared very recently, some three years after the original trial, more witnesses had been found than were available three years before.

The last matter I would ask the noble Baroness to consider when she comes to reply is the question of disclosure. I have absolutely no doubt that there would he many, many more cases of miscarriages of justice but for the recent development in the law in relation to disclosure. I understand that the Government and others are under pressure to take steps to ease the difficulties which the police are finding in complying with the present requirements. It may be that this matter may come before the House in due course in a future Criminal Justice Bill. In both the Maguire case and the Taylor case, to which I have referred, wrongful convictions resulted from a failure to disclose material. From what the noble Baroness has said already, and from what I hope she may say in reply, I trust that openness will be the order of the day, that there will be disclosure to the commission of all documents where the Home Office has previously reviewed a case, and that the applicant should see the commission's report and any statements and opinions or other reports which accompany it unless it is in the public interest not to do so or the sensitivity of the material prevents it. In other words, I hope that she will assure us that there will be a presumption in favour of disclosure.

I welcome the Bill, as have all others who have spoken. Improved as I think it can be, I believe that it will do a great deal to restore confidence in the criminal justice system and ultimately in the rule of law too.

4.44 p.m.

Lord Merlyn-Rees

My Lords, I welcome the Bill. It is a prime example of how events move a government to act in what in retrospect is obviously an inevitable way. I welcome the Bill to correct obvious weaknesses in the criminal justice system which have been too common in recent years. I am glad that the noble Lord, Lord Mishcon, mentioned the Maguire case. The noble Baroness, Lady Mallalieu, mentioned it in terms of practical experience. Much of what appears in the Bill and in the Royal Commission report stems from the original May inquiry.

My interest in this matter arose when I was Northern Ireland Secretary and Home Secretary and later because of a personal concern about the guilt of the Guildford Four and the Maguires. I, too, wonder how the new body will work. I learnt a great deal that concerned me in a programme on Yorkshire Television. Television programmes do not always perform a valuable service but the Yorkshire Television inquiry into the Guildford case was very revealing. I learnt a great deal from a visit to Styal prison to see Carole Richardson, who as a 17 year-old girl had been sentenced to life imprisonment. When I visited her she was 33 or 34. She is no longer in gaol. Anyone who has been involved in the criminal justice system as a politician could not travel back on the train without wondering what one does to correct the system. The medical staff at Styal prison said to me, "This girl is not guilty". They all said that. But that is not enough. There was something wrong with the system.

There is a need for a complete change in the procedures. C3 are not bad people but they are given an almost impossible task to carry out as civil servants. They should be freed in some way from dealing with alleged miscarriages of justice. When in a certain case I attempted correspondence with the Court of Appeal I was made to feel as if I was a rather foolish non-lawyer who should not interfere in those matters. The person I was writing about is now out of gaol. I am not pretending that there is an easy way through those problems but the legislation before us today is endeavouring to find a way.

I had a few constituency cases in a part of the world which the noble Baroness, Lady Mallalieu, knows well because her father was a Member of Parliament in that area. The constituents did not know what it was all about. They felt that there was something wrong. I pursued the case through C3. We shall have to be very careful when cases are submitted from such people because they will be dissatisfied at the end of the day unless the new body clearly explains why the case has been turned down—if the position is otherwise, there will be little problem.

For all these reasons I became involved with what the Royal Commission called the "cardinal's deputation". Led by the Cardinal of Westminster, it included the late Lord Devlin—I heard queries today about old men but I can only hope that I have as razor sharp a mind as Lord Devlin did when he was well over 80 and approaching 90—the noble Lord, Lord Jenkins of Hillhead, and the noble and learned Lord, Lord Scarman who, because of family illness, is not present today. The Bill owes much to the cardinal and his staff, to Robert Kee, who did more than assist us, and to Alistair Logan, a solicitor, who fits the category which the noble Baroness, Lady Mallalieu, described. He is a solicitor who almost sacrificed his career in order to pursue a case from which he could make little or no money.

I feel I should mention other people before raising one or two points. Much is due to Christopher Mullin, a Member of Parliament in another place. He is a classic nuisance figure. He does much better on the Back Benches than ever he would do in wasting his talents as a Minister. I was in Italy during the war. When Rome was falling we came across an Irish priest who had been helping RAF men and also soldiers to escape. When we asked, "What are you going to do now?", he said, "I'm going to help the Germans escape". Whatever government may appear in the next year or two, Chris Mullin will be there being a nuisance, because he cares not for man nor beast. In the other place and here in a different fashion, I have no doubt, such men are important.

We owe much to the Royal Commission and the noble Viscount, Lord Runciman, who together marshalled the arguments for change. I hope that the minority report by Professor Zander will be looked at carefully when we come to Committee and Report stages. I do not wish to speak as if we were at those stages, but there are a number of issues I ask the Minister to look at beforehand because I do not have the same view as others about the meaning of certain clauses.

The report explains at the beginning of Chapter 11 why it recommends the establishment of a new independent body. After raising the question of accountability, it deals with, the powers it may need to investigate cases". A number of your Lordships have raised that point this afternoon. That is the most important part of the commission.

The Home Office issued a very good press release on 23rd February. It states that the commission would, "direct and supervise investigations". As a former Home Secretary I asked myself whether I directed anything in that respect. The press release refers to "direct and supervise investigations". Will there be supervision and direction of the police? I have never noticed in the past that when a police force was asked to look into a case it was directed by the Home Office. The press release goes on to say, direct and supervise investigations undertaken on its behalf". So these are not policemen. I pull back from getting into a Committee or Report stage, but for reasons I shall come to in a moment I have the feeling that more can be done under this Bill than one thinks.

To those noble Lords who are to participate in the later stages of the Bill, I commend the scheme issued by the Home Office as to how the new system works. I shall not go into it all. It states, The CCRC will have new powers to … require a police investigation". That is fine. It goes on to say that it will, approve [the] appointment of investigating officers"— which means policemen—and, supervise investigation". The noble Viscount, Lord Runciman, said: Although the Royal Commission envisaged investigations being carried out by a designated police force under the direct supervision of the new review body"— it is this direct supervision which I do not understand— that body should not be precluded from recruiting onto its own staff trained investigators"— a point that has already been made— who would not necessarily be serving police officers".

The Archbishop of Westminster wrote a letter to The Times and I shall use just a few lines of it. The letter states, The Bill appears to provide no reserve power for the Commission to instigate and carry out investigations using only its own suitably qualified staff, and it appears to leave the Commission with insufficient powers effectively to plan, direct and supervise police investigations". Under the present terms I do not see the commission supervising the police and calling in the deputy chief constable of a county force and asking, "Have you done this; have you done the other?" That is what supervision and directing means.

I was looking hopefully at the Bill as it has been drawn. Clause 18 requires the appointment of an investigating officer. Does that have to be a policeman or policewoman? Clause 20 refers to Sections 16 to 19 as being, without prejudice to the taking by the Commission of any steps (including obtaining, or arranging for others to obtain, statements and opinions and commissioning, or arranging for others to commission, reports) which they consider appropriate". That follows on from Clause 14(1) which states, Where a direction is given by the Court of Appeal under"— another section of the Act— the Commission shall investigate the matter specified in the direction in such manner as the Commission think fit". The commission can do what it likes. I see nothing to prevent the commission from calling others to work for it apart from the police. I understand the problem. A policeman has the right to question, but someone else would not have that right. I see this new commission as having far greater powers than is perhaps realised. When I operated with C3 we had practically no powers. In this Bill there is reference to "any power".

I welcome this Bill and I ask for clarification on those points as regards the powers of the commission because we shall debate it at a later stage of the Bill. I am convinced that, as well as the police, we should have other investigators. I have had a police guard for the past 22 years. I owe the police a great deal. I am not being anti-police, but there are aspects of certain happenings in recent years where one questions what the police have done. One can question what politicians have done. I support the police completely, but the new commission should have powers to investigate other than with the police themselves. We shall come back to that point. In preparation for that I say to the Minister that we need explanations of what those clauses of the Bill, as drawn, mean.

4.56 p.m.

Baroness Blatch

My Lords, I have noted with some pleasure and with much relief the general welcome for the Bill. I have also listened carefully to the very valuable points and expressions of concern which have been made. I shall of course try to address many of the points but constraints of time will prevent me from answering every single point. No doubt, much will have to wait until further stages of the Bill.

It has been common ground in our discussions that the Bill is concerned not only with the pursuit of justice but also with the issue of confidence that justice is done and is seen to be done. I welcome the support which noble Lords have given to those fundamental principles.

The noble Lord, Lord McIntosh, opened the debate in terms of the points of criticism. I take into consideration very much all those points of concern that have been made in a very constructive way against the background of a general welcome for the Bill. The points made by the noble Lord, Lord McIntosh, have properly been echoed by many others during the course of the debate.

The first point considered what is meant by members with knowledge and experience. The noble Lord gave some examples of what he meant. It is not intended that they should all be lawyers—or even any of them. They may include former police officers, prison governors, forensic psychiatrists or probation officers, just to name four examples. The body will not be confined to people with absolute knowledge of the law.

The noble Lord, Lord McIntosh, and many others, including my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, were concerned about disclosure. The point made by the noble Lord, Lord McIntosh, was that the provisions in the Bill would weaken the judgment in, for example, the Hickey case. I do not agree. The Bill requires the commission to provide a fully reasoned explanation of any decisions not to refer a case. The Bill also provides gateways through which the commission can disclose information in other circumstances. These are sufficient to enable the commission to keep applicants informed of the progress made in investigating their case and, in line with the judgment in the Hickey case, to disclose information so that in the interests of fairness they can make further representations on matters that the commission has found in the course of its inquiries.

The noble Lord, Lord McIntosh, referred to the criteria for the commission to refer cases to the courts. The requirement that there should be some new evidence or argument is a broad one. It will enable the commission to refer any case to the courts in which some new point has come to notice which might lead the court to take a different view as to the safety of the conviction. The current grounds for allowing or dismissing an appeal are complex and overlapping. Under the Bill the Court of Appeal is required to allow an appeal against a conviction if it thinks that the conviction is unsafe, and to dismiss the appeal in any other case. That change clarifies the terms of the existing law and, in essence, restates the existing practice of the Court of Appeal. It has been warmly welcomed. Indeed, I noted the welcome given to it by the noble and learned Lord the Lord Chief Justice.

The discussion paper gave a broad welcome to the Royal Commission's formula of "is or may be unsafe" because the Government recognise the need to bring clarity and simplification into these matters. However, the Royal Commission's formula goes wider than the current practice of the Court of Appeal and was on examination found to be uncertain in its effect. The formula in the Bill provides a simple test which effectively restates the existing practice of the court. It does not narrow the grounds for allowing an appeal. Noting the reservation made by my noble friend Lord Campbell of Alloway, I have to say, consistent with the points made by my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, that the provisions retain the "lurking doubt" element of the current test for allowing an appeal.

The use of police investigators has been mentioned by many noble Lords. Under the Bill, the commission may obtain opinions and reports from, and have inquiries carried out by, whoever is appropriate. That might include accountants, psychiatrists or forensic scientists. However, where inquiries require the expertise and skills of the police, it is both the proper and most effective solution for that work to be conducted by police officers under the commissioners' direction and supervision.

On that point, perhaps I may turn to the issue raised by the noble Lord, Lord Merlyn-Rees. The noble Lord's understanding of this was about right. In effect, we are empowering the commission to use the police—not requiring it to use the police as the only means of exploring a case.

Perhaps I may reiterate what I said earlier. The Bill gives the commission all the powers it will need to carry out its investigations effectively and thoroughly. It will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf and in accordance with its directions and, if necessary, under its supervision. It will be able to require the appointment of an investigating officer from a different force if it thinks that appropriate or from public bodies other than those which investigated the crime originally if it thinks that the case would be prejudiced by the use of the same force when it is possible to engage a different force. It will be able to insist that it approves the choice of investigating officer before an investigation takes place. It will be able to direct any investigating officer to cease to act as such and to direct that that individual officer be replaced by another if his performance is not satisfactory.

The commission will be able to make its own inquiries and commission its own expert opinions and its own tests. It will be able to obtain access to documents held by police forces and other bodies. It will also be able to obtain relevant papers and other material held by my right honourable friends the Home Secretary and the Secretary of State for Northern Ireland as a consequence of their having considered possible miscarriages of justice under their existing powers. They will have the powers to operate in the way that was suggested by the noble Lord—

Lord Merlyn-Rees

My Lords, I am grateful to the Minister for more fully explaining the provisions. Will the commission have the power to employ former policemen as investigating officers? I am not talking about replacing the police force, but given that an understanding of what the police do in investigations is not given to everybody, might not a former policeman have a useful role to play?

Baroness Blatch

My Lords, in answer to the noble Lord's point, under the law serving policemen have particular powers of investigation which cannot be replicated in other bodies. Therefore, there will be a distinction in how such people are engaged by the commission. If other people are engaged, they will not have the same powers as are enjoyed by serving police officers.

Lord Rodgers of Quarry Bank

My Lords, the noble Lord, Lord Merlyn-Rees, is seeking to clarify an important point. The financial statement refers to the cost, to which I referred earlier, as being £4.3 million for accommodation and administrative overheads. Do I understand that there is provision within that sum for the in-house investigations to which the noble Lord refers if that is what the commission wants?

Baroness Blatch

My Lords, I am not dealing with costs at the moment; I am dealing with the powers not only of the commission but of serving policemen and others engaged in the investigative work. I shall refer to the question of costs in a moment.

A major change from the current arrangements will be the use of police investigators working under the active direction and supervision of the commission. That, and the power of the commission to insist on an outside force, provides the necessary independent element in such investigations.

My noble friend Lord Alexander was concerned that the review body should have a core of investigators among its staff, such as seconded police officers. We agree. It is our intention to have among the commission's staff people with a police background, but we believe that their efforts will be most useful to the commission if they are employed in advising members on the direction and supervision of a number of investigations rather than being forever away from the commission, embroiled in detailed inquiries on the ground.

Extending that point, my noble friend Lord Alexander asked: why not give the commission its own investigators to look into particularly difficult and contentious cases? The problem is that almost every applicant will consider his or her case to be difficult or contentious. If some cases were deliberately withheld from the police on those grounds, how would other applicants be given confidence that they had been fairly treated and what incentive would the police forces have to take responsibility for imperfect investigations if they were barred from correcting mistakes made in difficult cases? It is a question of other people being engaged in such work "where appropriate" and of incorporating the use of directly employed staff.

The noble Lord, Lord Rodgers of Quarry Bank, expressed concern about the need for the commission to be properly funded. He also raised that point in an intervention. It will be our aim to ensure that the commission is properly funded, consistent with our obligations to ensure that public funds are used with regard to value for money. The value-for-money aspect cannot be disregarded. The police already undertake substantial investigations in such cases from within their existing resources. We do not at present consider that there will be any significant additional burden but, of course, we shall have to keep that position under review. We have noted what noble Lords have said.

The noble and learned Lord the Lord Chief Justice was concerned about the extra burden from sentence referrals. The Secretary of State has the power to refer any sentence imposed following a conviction obtained on indictment. We receive representations on sentence in about 50 cases each year. Some are representations on the sentence alone, while some cover both conviction and sentence. Some decision has to be made about how they are to be dealt with in the future. We considered three options: leaving the power with the Secretary of State; providing an extended right of appeal to the courts; and transferring the power to the new commission. We concluded that giving the task to the new commission was the best, most cost-effective and sensible solution. The commission is empowered and resourced to investigate and could take on the question of an alleged wrongful sentence without difficulty.

The noble Lord, Lord Rodgers of Quarry Bank, was concerned about the costs of in-house teams for investigations. The costs of in-house investigations have not been assessed and we have insufficient data on which to base such an assessment. As I have said, the police at present meet the costs of an investigation by them into an alleged miscarriage of justice on behalf of the Secretary of State. No figures are available for those costs. They are not recorded separately from those regarding other investigations by the police. The Government consider that providing an in-house team would not be cost-effective because, first, it would add considerably to the commission's costs. Demand for investigations into larger, more complex cases is likely to fluctuate and it is therefore difficult to establish a unit of optimum size. At times, some of the officers in the unit would be under-occupied; at others, necessary investigations could be delayed because the officers needed to do the work were engaged on other cases.

Officers of such a unit would have to be accountable for the exercise of police powers and subject to disciplinary arrangements in respect of their operational duties. Special arrangements would also be needed to give them access to training opportunities and to keep them in touch with developments in police practice, investigative techniques, and so forth.

Experience shows that in a significant number of cases the investigation required is straightforward. It would be far quicker and more cost effective to ask the force concerned to undertake the work. It knows the background to the case and where to find the people concerned. It would be less effective to use a group of officers unfamiliar with the case to make the same inquiries. If trained, experienced investigating officers were to be seconded to the commission they would not be available for other duties when not investigating for the commission. All of that is with the caveat that, where appropriate, of course the commission would employ the right people for the job in hand.

The noble and learned Lord the Lord Chief Justice asked about appeal procedures being created for judicial recommendations in mandatory life sentence cases. My right honourable friend the Home Secretary is aware of the noble and learned Lord's concerns and has written to him on that point. We are not convinced that the issues raised are straightforward. There is a difference between mandatory and discretionary life sentences, and the different procedures are established to reflect that difference.

The noble Lord, Lord Mishcon, referred to handing over inquiries to the police, especially when they are investigating police propriety. The proposal is not to hand over inquiries to the police—the point made by the noble Lord, Lord Merlyn-Rees. The commission's independent members and staff will be directing and supervising police inquiries as closely as they consider that to be necessary. There should be no doubting the thoroughness with which the police already investigate miscarriages of justice, but of course that point was well made by the noble Lord, Lord Mishcon.

My noble friend Lord Campbell of Alloway put up a marker. I wonder whether he will forgive me and allow me to think more about that marker. The noble Baroness, Lady Mallalieu, asked me about legal aid, and whether it would be available to those wishing to make representations. Legal aid through the green form scheme will continue to be available to those wishing to make representations to the commission— whether initially to the commission or at a later stage in the light of the results of any investigations by the commission—but no additional provision is needed, because once the commission looks into a case it will of course be doing any necessary investigations.

The noble Baroness, Lady Mallalieu, and others, were concerned about disclosure. She asked the straight question as to whether there would be a presumption in favour of openness. I can unequivocally answer yes, subject of course —I hope the noble Baroness will understand this—to the necessary confidentiality in relation, for example, to witnesses.

The noble Lord, Lord Merlyn-Rees, referred to the work of Cardinal Hume and others who made representations on behalf of the Guildford Four. Perhaps I may pay my tribute to the noble Lord, Lord Merlyn-Rees, because I am aware that he was a member of that group of people which did such sterling work.

I hope that noble Lords will forgive me but I shall address the individual points much more fully in Committee. The Government recognise the importance of establishing a new review body which will be of long-term benefit to the maintenance of the quality of, and indeed public confidence in, the criminal justice system. I believe that the broad welcome that many of the provisions contained in the Bill have received will enable that goal to be achieved. My hope is that we shall establish the commission as soon as may be. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.