House of Commons Hansard Debates for 28 Mar 1994

Mr. Gunnell : I entirely agree--that is indeed an anomaly. The son of two constituents of mine, Alan Dodson, who is in Full Sutton prison, was convicted in 1987 of the murder of his fiancee in 1986. From the moment of his arrest and first interview, he has always maintained his innocence. Division 3C of the Home Office entertains some worries about that, because of the representations about it that have been made to the Home Office. It has asked me for any helpful information that I might be able to provide. That goes to show the difficulty of making any progress on the case.

The original request for an appeal came from my predecessor, Lord Merlyn- Rees, and was turned down on the ground that there was no new evidence. At the time, that seemed a fair decision, but in some cases it is, by definition, extremely hard to come up with new evidence--when a murder is alleged to have been committed by a person acting alone, and when the police have formed a conclusion from the outset about who the guilty person

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was. That can mean that the police do not properly investigate other possible leads. It is thus extremely difficult to produce further evidence.

Sometimes one cannot even procure a copy of the judge's summing-up. That applies in this case ; no such copy exists, because the transcript has never been translated from the shorthand. Indeed, some of the shorthand notes of the six days of the trial that preceded the judge's summing up have been lost and can therefore never be recovered. It is clearly impossible to obtain a complete picture of the trial.

To obtain a copy of the summing up, a Member of Parliament would have to find £600--and I am told that we cannot ask for that to be done at public expense, or even pay for it out of our office expenses, if we are prepared to do so. It is hard to make progress without the summing-up by the judge in such a case.

The police seem to have formed a single-minded judgment. It seems that the defence may not have been conducted in a way that was helpful to the person in question. All this shows why many people are concerned about a delay in the appearance of a criminal cases review authority on the statute book.

We are also worried that the Bill will increase the potential for miscarriages of justice. For instance, we regret the way in which the right to silence has been dealt with, but that is a subject for another debate. We also regret the rejection of the many constructive Opposition amendments that sought to restrict the time at which that might take effect to formal situations. That would have meant that people could not be held responsible for everything that happened from the moment they were spoken to on the street, in the police car or at the station without a solicitor being present. Such safeguards should be in place if we are to avoid further miscarriages of justice.

That being the case, it is particularly important that the miscarriages of justice that have occurred should be capable of investigation and should be put right as rapidly as possible on the broader base, which is simply that they are or may be unsafe. It being Ten o'clock, further consideration of the Bill stood adjourned.

Motion made, and Question put forthwith, pursuant to Standing Order No. 14 (Exempted business),

That, at this day's sitting, the Criminal Justice and Public Order Bill may be proceeded with, though opposed, until any hour.-- [Mr. Patnick.]

Question agreed to.

Question again proposed, That the clause be read a Second time.

Sir Richard Body (Holland with Boston) : I, too, congratulate the hon. Member for Sunderland, South (Mr. Mullin) on his new clause. Twenty years ago, it would have been quite unnecessary, and I would have said that after 20 years at the criminal bar. Over the past two decades there have been far too many injustices that have not been put right by the Court of Appeal because of its procedures and various inhibitions. I suppose that many of us can think of constituents who have been convicted, not in such dramatic circumstances as those that we have heard about, but in a lesser way.

I can think of one very prominent constituent who was convicted of murder. It was what the French would call a

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crime passionnel. He was het up and emotionally charged when he went to the police station and was undoubtedly coaxed into making a statement which I do not think would have held water and would have been put right by the kind of independent body about which the hon. Member for Sunderland, South has spoken.

As I have said, there have been far too many injustices and it is intolerable to permit them to go on without a body such as that which the new clause proposes. Sooner or later, that body will be set up. Let us do it now rather than postpone it and in the intervening time have more injustices.

Mr. Trimble : I rise primarily to show my support and that of my hon. Friends for the principle behind the new clause proposed by the hon. Member for Sunderland, South (Mr. Mullin). I welcome the form of the new clause in that it refers not only to England and Wales but to Scotland and Northern Ireland.

No system will be perfect, and no matter what the circumstances, mistakes are bound to occur in any situation. Several years ago I spoke to a visiting group of American lawyers who were concerned about the criminal justice system in Northern Ireland. I told them the remarkable fact that over the many years of operation of the Diplock courts, there had until then been no cases in which any person convicted in the courts was imprisoned protesting innocence. That, of course, is no longer true. We have had the UDR Four case, with which my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis) has been particularly associated.

Since the Court of Appeal overturned three of the four convictions in that case, other cases have come forward, at least one of which appears to me to have some merit. Therefore, we cannot claim to be immune from problems, although I must tell the hon. Member for Morley and Leeds, South (Mr. Gunnell) that at least we have the advantage of always getting transcripts of cases and judgments and automatic rights of appeal.

None the less, I am satisfied that there should be a review authority and that it is not right to leave the matter purely to the Home Secretary or the Secretaries of State for Scotland, Northern Ireland or Wales, as the case might be.

Further, the review authority must operate in what one might call an inquisitorial manner. It must free itself from the adversarial approach that dominates the courts and appears to have dominated also the attitudes of the Home Office and administrators. Although the Secretary of State for Northern Ireland has not yet responded to the Adjournment debate that my hon. Friend the Member for Fermanagh and South Tyrone obtained on the Neil Latimer case a few weeks ago, it seemed from listening to his response that he was still far too much trapped within the habit of thought of someone who operates within the adversarial system. He seemed primarily concerned with defending and vindicating the judges and the judicial decision, rather than with taking an independent view and being motivated primarily by the search for truth, which must be the purpose of the review authority. It is strange that lawyers who present cases and judges who decide them are comfortable with the thought that they may make mistakes when dealing with civil actions, and feel no rebuke when an appeal court overrules or varies their decision, but that they become desperately defensive

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about criminal actions--as if they were fallible only in respect of civil actions and infallible in criminal matters. That is not a rational view.

I welcome the publication of the Home Office discussion paper. As the hon. Member for Sunderland, South said, his new clause and this debate might have set its timetable and target. If so, that is a good thing. Perhaps it is a pity that it was not published earlier. I hope that the Home Office will not adopt a purely parochial attitude and consider only England and Wales, but that like and speedy consideration will be given to Northern Ireland and the other jurisdiction.

I agree that the wider grounds for appeal referred to in paragraph 44 of the paper should be adopted. The right approach is that adopted in Northern Ireland for county court appeals, when a complete new hearing is started. By complete, I mean that all the evidence is considered afresh--there is not the technical rehearing that occurs in the English Court of Appeal.

There should be judicial review of the review authority's actions, and it should be under an obligation to make wider disclosure than paragraph 73 of the paper envisages. Most important of all, there should be no limitation on the royal prerogative. The discussion paper makes the mistake of suggesting that the royal prerogative's future scope must be limited, but I believe that it should be available to cover the exceptional case--and by definition, the exceptional case cannot be predicted. An opportunity must exist for recourse to the royal prerogative.

Another problem that concerns me as a Northern Ireland Member is that of small jurisdictions. I am not sure of the extent to which that is a problem in Scotland, but I suspect that it is one. Northern Ireland has one Lord Chief Justice, a few Lord Justices of Appeal and a few puisne judges--a total of 10. A criminal case will be heard by one of them in the first instance. Under the Diplock courts, there is an automatic right of appeal to a hearing by a further three judges. That accounts for four judges out of 10. If the case is referred back to the criminal court of appeal, another three judges will be required. With the referral of the UDR Four case, one prosecuting counsel had been promoted to the Bench, so was ruled out of consideration. What will happen if such a case is referred back to the Court of Appeal, when it has already run through half the judiciary ? Is it reasonable to expect that an entirely fresh view will be taken by judges capable of taking such a view ?

Small jurisdictions also produce a better cohesion among the jury-- everybody knows everybody else. I am sure that problem exists also in Scotland. One constituent of mine is in prison in Scotland, and there are reasonable grounds for suspecting that the decision in that case was not safe. I encounter in the representations that I make exactly the same defensive attitude that we have seen among the judges and lawyers in Northern Ireland. So there is a particular problem there.

I finish with one general observation. Details have been given this evening of several serious miscarriages of justice. In some of those cases, although not all--it is not the sole problem--the problem was unethical conduct by the police, the prosecutors and others. That is a general problem. No review authority would be able to cope with that, but it has to be emphasised that part of the process that is adopted must be to reassert the ethical standards that ought to apply in the police and among prosecutors.

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If I recall rightly, when Lord Denning referred on that celebrated occasion to an appalling vista, he had in mind that if the appellant's case was true, it meant that the police had lied and the lawyers has failed in their duty. That was what he saw as the appalling vista : those whom we relied on to behave honourably had behaved dishonourably. That is something that we have to deal with. In Northern Ireland, another factor has aggravated the matter. As well as over- enthusiasm among the police and prosecutors, political pressure has been exerted, and corrupted the process. That may also have been a factor in some of the miscarriages of justice in England and Wales too. It has certainly been a factor in Northern Ireland in the case with which I am dealing. The miscarriages of justice in England and Wales have also had another effect. It has been significant in one case that affected us in Northern Ireland. It has resulted in a tendency by juries to disbelieve evidence. That perhaps follows on from what Lord Denning saw as the appalling vista. I am glad that the Home Office has published its discussion paper. I hope that the matter will be progressed as speedily as possible. I hope that the other jurisdictions, Scotland and Northern Ireland, will be kept on board and that legislation will be introduced soon which will deal with the matter on a United Kingdom basis, with all the jurisdictions at the same time. I appreciate that, because of its background, there will have to be slight differences for Scotland. There is no significant difference on the matter between the legal systems in Northern Ireland and in England and Wales. I hope that the Home Secretary can assure us this evening that the Northern Ireland Office will be fully on board on this issue and that changes will be made simultaneously.

Mr. Blair : I rise to speak in support of new clause 6, tabled by my hon. Friend the Member for Sunderland, South (Mr. Mullin). I pay tribute to my hon. Friend for the work that he has done on the subject and the manner in which he moved the new clause today. I also pay tribute to my hon. Friend the Member for Bristol, East (Ms Corston), whose Bill on the subject has also helped to move the argument forward.

I wish to be brief and I intend to confine myself to one point. It is right that new clause 6 has been tabled. Like my hon. Friend, I suspect that if it had not been tabled we might not have had such a prompt response from the Home Office last Friday in the form of a discussion paper, although the Home Secretary is doubtless about to stretch our credulity a little more and tell us that it was a marvellous coincidence.

Of course there are problems of detail. For example, who would conduct the investigations of the new body ? However, there is broad agreement in principle about the authority. There is agreement that the review body should be independent of the courts and should have its own procedure for investigations. There is a wide consensus as to the need for the body and a fair degree of consensus as to its powers.

The hon. Member for Bexleyheath (Mr. Townsend) was right when he said that one of the important things about such a body is that questions of miscarriages of justice would no longer depend on the arbitrary swings of publicity, taking up a particular cause at any one time, but would be on the more objective basis of a proper and thorough investigation.

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The argument for such a body has been concluded and won long since. I make that point in support of the new clause. The Royal Commission on criminal justice, which was in a sense the reason for the legislation before us, was set up on 14 March 1991--the day the Court of Appeal quashed the convictions of the Birmingham Six, who had long and in vain relied on the usual procedures to obtain justice. It followed the 1989 inquiry of Sir John May into the convictions of the Guildford Four and the Maguires. In the course of that inquiry, Sir John made clear his belief that the present system should change, which was also the view of successive Home Secretaries. The inquiry had itself succeeded the report of the Select Committee on Home Affairs, produced more than a decade ago. On page 6, the royal commission report--published nine months ago, in July 1993--states :

"The widely publicised miscarriages of justice which have occurred in recent years have created a need to restore public confidence in the criminal justice system. That need has not diminished since we were appointed."

10.15 pm

A royal commission set up to investigate the need for such a body recommended its establishment. It has been debated for literally years, with a growing consensus on all sides that it is necessary. There is no substantial disagreement about the need or purposes of it. In those circumstances, it is scandalous that there is no provision for it in the Bill. Such provision should and could have been in the Bill, and would have attracted enormous support from all quarters in the House.

I venture to say that if anyone had suggested back in March 1991--when the royal commission was set up--that a recommendation for such a review body in its report would be the one proposal not included in the Bill, people would have been deeply surprised. The Home Secretary may shake his head, but I think that that is obvious. The commission was set up on the very day when the convictions were quashed and it was set up in part, at least, to look into the need for such a body. There was already a strong consensus in its favour, and the commission found definitively that it should be set up. Now, nine months on, we still have only a consultation paper from the Home Office. I believe that there is no good reason why we could not have proceeded in a much quicker and more effective way.

If we are to restore confidence within the criminal justice system, of course we must be keen to convict the criminal ; but we must also be keen to provide justice for the innocent. That is the purpose of any good criminal justice system--not to favour the prosecution or the accused, but to seek and obtain the truth, wherever it may lie. We know that there has been a history of miscarriages of justice over the past few decades, and a royal commission set up to inquire into the purpose of a review body recommended its establishment. Establishing the review body, and including it in the Bill, would constitute an important statement on behalf of the House about the right balance in the criminal justice system.

There is no good reason for delay. I believe that if the Home Secretary proceeded now he would be doing a service to the entire criminal justice system, and establishing confidence within that system. I urge him to accept calls that have come from hon. Members on both sides of the House, and to act now to put the matter right.

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Sir Ivan Lawrence : I, too, shall be brief.

There is no doubt that a string of miscarriages of justice has marred the high reputation of British justice ; equally, there is no doubt that the hon. Member for Sunderland, South (Mr. Mullin) deserves praise rather than vilification for the part that he has played. I must point out, however, that many--although not all--of those miscarriages of justice took place 16 years ago. Since then, a number of things have already happened to reduce the likelihood of such miscarriages, although not to seal off all possibility of them. The miscarriages of justice took place before the establishment of an independent Crown Prosecution Service, genetic testing, the electro-static document analysis system, the Police and Criminal Evidence Act 1984--which protects suspects--and the changes in criminal trial procedure whereby judges warn juries to be ultra-careful in identification cases. These miscarriages mostly took place before the new training of lawyers and judges and, in particular, before the introduction of tape-recorded interviews. That will have reduced substantially, but not sufficiently, the likelihood of miscarriages of justice.

Immediately after the string of miscarriages, the Government set up the Runciman royal commission. They have accepted in particular the recommendation that there should be a criminal cases review authority, which is long overdue. What is wrong with the present system is simply that it misses some of the miscarriages of justice. The Society of Conservative Lawyers gave evidence to Runciman. That evidence was a bit stronger than some of the Runciman proposals that the Government are now considering. We suggested that the Court of Appeal should always acquit if it has a lurking doubt, that more use should be made of the power of the Court of Appeal to order a retrial, that there should be legal aid to cover reasonable search for new evidence and that there should be a widening of principles whereby new evidence could be admitted.

We also said, however, that the Court of Appeal even in a reformed state would not be enough to remove some of the miscarriages of justice and we, too, suggested an independent review board. We made the point that it should not be the responsibility of the Home Secretary to decide whether or not matters should be considered for reference back to the Court of Appeal, as advised by Home Office officials, who sometimes seem to believe that there must be positive proof of innocence before anything is referred back. One cannot, by looking at papers, detect whether a police officer has been dishonest, whether a forensic scientist has made a mistake or whether a witness was in error.

There was always a fundamental flaw in leaving it to the Home Secretary-- who, of course, is subject to approaches by archbishops and everybody else- -to give the impression that some of his decisions may be made on a political or other basis when nobody has the slightest reason for thinking that that ever happens. Obviously we could remove that sort of decision from the Home Secretary and put it in the hands of an independent review body. That would be much better, but such a body must be properly staffed and properly funded and must have full investigative powers. In this regard I agree with much of what has been said during the debate. The body must take up its position as soon as possible, and the discussion paper is a good start.

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We are considering the wrongful conviction of the innocent--a type of miscarriage of justice that is deplorable in every sense. But there is another type of miscarriage of justice--the wrongful acquittal of the guilty. It may be that every year there are tens of miscarriages of justice involving wrongful conviction of the innocent, but there are tens of thousands of miscarriages of justice involving acquittal of the guilty. These people then go out and commit more crimes and are responsible for more suffering and misery in society. Runciman has addressed that matter, too. My plea is that my right hon. and learned Friend the Home Secretary should implement those changes as quickly as possible, as he is doing in the Criminal Justice Bill and beyond, so that society may be rid of all kinds of miscarriages of justice--not just the conviction of the innocent but also the acquittal of the guilty.

Rev. William McCrea (Mid-Ulster) : The hon. Member for Sunderland, South (Mr. Mullin) and I often have very different opinions, and that will certainly continue to be the case. However, there is wide consensus in the House and in the country that there should be an independent body to investigate alleged miscarriages of justice. The establishment of such a body would be in the interests of British justice. I trust that the Home Secretary is listening attentively to the views of hon. Members and will agree to the establishment of an independent body.

There have been unjust attacks on British justice, and the impression has been given--and is still being given--that in every case in the past few years in which people have been released from prison they were innocent. I do not believe that that is what the courts said : they said that the convictions were not safe, which is very different from suggesting that every individual involved was wholly innocent.

Mr. Mullin rose

Rev. William McCrea : No, I shall not give way as I intend to speak for only a few minutes.

I stress that I am not interested in putting behind bars anyone who is innocent. British justice does not accept that the innocent should suffer, but I do not believe that the guilty should go free. I want there to be a genuine search for the truth. If those who have been released were guilty, I hope that we can somehow get to the very depths of the case, whether it be the Birmingham, Guildford or Ulster Defence Regiment cases. The House should be seeking the truth, irrespective of what the individual involved represents or of whether, in terms of Northern Ireland, he is from one section of the community or the other.

I have not heard much from Opposition Members about the UDR Four-- [Interruption.] The hon. Member for Sunderland, South was one of the few who mentioned them. From the very beginning, my colleagues genuinely believed in the innocence of the UDR Four, while others have recently joined the bandwagon who in the past wrote that they were guilty.

Lawyers are not perfect ; nor are judges, Ministers or Members of Parliament. Errors can be made and, if they have been made, they must be put right, which is why we should have an independent body to investigate matters. My colleagues will certainly support that notion tonight because it is important. I ask the Home Secretary to take the matter seriously and to accept that there is widespread concern in the community.

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I make a further appeal to the Secretary of State for Northern Ireland and to the Home Secretary about the case of one member of the UDR Four who still lies in prison. He is innocent of the crime of which he has been accused. Three of the UDR Four were let out but one has been left in, and the only possible reason for that is political. There are plenty of reasons why Neil Latimer should be let out and I trust that he will be released.

I ask the House to support the new clause as I believe that it is being forced to a Division. I trust that the right decision will be taken and that we shall strike a blow for good British justice.

Mr. Howard : I, too, pay tribute to the hon. Member for Sunderland, South (Mr. Mullin) for the way in which he moved the new clause and for the way in which he has conducted his campaigns down the years. I agree that he must look back on some of his successes with considerable satisfaction.

Like every other hon. Member, I believe that one innocent person convicted is one too many. I want to put in place the best criminal justice system that it is possible to provide--a system that contains all necessary safeguards to minimise the possibility of a wrongful conviction, the most effective appeals procedures that we can devise, so that if there are any wrongful convictions they can be corrected at the earliest possible stage, and the best machinery for investigating alleged miscarriages of justice to ensure that, in the last resort, appropriate cases are referred back to the courts for review.

As the House will know, the Government have accepted the royal commission's recommendation that the powers to investigate and refer cases to the Court of Appeal should be removed from the Home Secretary and that a new body-- the criminal cases review authority--should be set up to carry out those functions. We are committed to establishing the new authority as soon as possible. That is a firm decision by the Government on the principle, but a decision in principle is not enough to provide the basis for detailed legislation. The royal commission considered the issues carefully and, we think, came to the right conclusion. However, its proposals do not amount to a detailed blueprint for the new authority. They do not answer all the questions that need to be settled before effecting this major constitutional change--probably the biggest in the area since the Criminal Appeal Act 1907.

There are further important issues to consider. Some are points of detail, but they nevertheless have to be decided before an effective scheme can be set in place. Others are more substantial. I shall say a word or two about some of them in a few moments. There may be different views on them, in the House and elsewhere, but they need to be resolved before we can proceed.

10.30 pm

We have been devoting a great deal of thought to identifying the issues and examining possible solutions. The results are set out in the discussion paper that I published on Friday. We have invited comments from those interested in this area of the criminal justice system by 31 May 1994. There are many people, practitioners and others, with a long-standing interest in miscarriage of justice cases--there is no doubt that the hon. Member for

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Sunderland, South is among them--with experience and insights to offer. I want to hear from them and to benefit from their views.

Mr. Michael : The Secretary of State is basically asking us to be patient. Is not he aware that when those of us who were involved with the Criminal Justice Bill in 1993 moved similar propositions, we were were encouraged to be patient because, we were told, they were to be the basis, the heart, of the Bill currently before the House ?

Mr. Howard : Whatever was said at that time was said before the royal commission's report was published. The royal commission might have come up with a detailed blueprint that would have enabled us to include provision for that body in the Bill. I can tell the House that no one would have been more pleased than I to include those provisions in the Bill. I was extremely keen to do it. It is perfectly clear, however, for the reasons that I have set out, that it is not a practical proposition.

The paper that I published on Friday discusses a range of important issues. They include the authority's relationship with the courts and with the Government, the composition, working methods, procedures and powers of the authority, the criteria for investigating cases and referring them back to the courts, the circumstances in which the royal prerogative should be exercised in the future, how members should be appointed and to whom the authority should be accountable. The Lord Chief Justice, when he spoke in another place last October in a debate on the royal commission's report, stressed the importance of not rushing to creating new machinery for looking at alleged miscarriages of justice. He said :

"It is necessary to have a review procedure and it should be conducted by an independent body".

But he also said :

"it is extremely important . . . that we should not proceed too quickly. It is important that the new body should be properly constituted and set up."- -[ Official Report, House of Lords , 26 October 1993 ; Vol. 549, c. 795- 98.]

I agree with him and I can assure him, and the House, that when the new authority is established, it will be after very careful consideration of, and consultation on, all the issues. The new authority will be properly constituted and set up. That is the right way forward, rather than the new clauses.

I know that many hon. Members are impatient to see that change introduced and so am I, but we should not do anyone any service if we rushed the legislation through without having attended to all the detailed questions that are set out in the discussion paper. It is for those reasons that I urge the House to reject the new clause. Question put , That the clause be read a Second time :

The House divided : Ayes 278, Noes 308.

Division No. 182] [10.35 pm

AYES

Abbott, Ms Diane

Adams, Mrs Irene

Ainger, Nick

Ainsworth, Robert (Cov'try NE)

Allen, Graham

Alton, David

Anderson, Donald (Swansea E)

Anderson, Ms Janet (Ros'dale)

Armstrong, Hilary

Ashton, Joe

Austin-Walker, John

Banks, Tony (Newham NW)

Barnes, Harry

Barron, Kevin

Battle, John

Bayley, Hugh

Beckett, Rt Hon Margaret

Benn, Rt Hon Tony

Bennett, Andrew F.

Benton, Joe

Bermingham, Gerald

Berry, Dr. Roger

Betts, Clive

Blair, Tony

Blunkett, David

Boateng, Paul

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