Mr. Alistair Darling (Edinburgh, Central): On a point of order, Madam Speaker. On Monday last, the Chancellor made a statement to the House, following the collapse of Barings bank. On Friday, on the BBC, he was good enough to say that he had withheld certain details when he made his statement.
In the light of what has happened over the past week, especially the concerns over the role of the Bank of England in the affair, and as the takeover is now going ahead--bonuses are being paid, although the position of the investors and depositors is not yet clear--I wonder whether there is any mechanism whereby the Chancellor is required to come back to the House to explain what he meant when he said that he had not revealed the whole story to us? I understand that he is reluctant to make a statement, for reasons that we can understand, but it cannot be satisfactory that the Chancellor does not tell the House the whole story when he makes a statement. Several hon. Members rose --
Madam Speaker: No, I shall deal with this point of order first, thank you.
As the hon. Gentleman and the House are aware, I have no authority to require any Minister to come and make a statement. The hon. Gentleman has some ingenuity and I am sure that he will find ways in the course of our proceedings or through the Order Paper to get the Government to come forward if he wishes further statements to be made or on any point of clarification.
Mr. D. N. Campbell-Savours (Workington): On that matter, Madam Speaker--
Madam Speaker: No, there is no further point of order.
Mr. Campbell-Savours: On a related matter, Madam Speaker. When the Chancellor made his statement last week, he did not say that the Bank of England might be responsible for actions of which it now stands accused by the Singapore authorities. Would you be prepared to show some flexibility in deciding what questions can be tabled, because I have a whole series of questions that I want to table about the actions of the Bank of England, but am concerned that when I seek to table them I will be told by the Clerks that I cannot do so because those questions are the subject of the inquiry that has been ordered by the Chancellor and are covered by the statement that was made at the Dispatch Box last week? All that I am asking
Column 22is that we be permitted to ask questions freely and that there is no rule to allow the Clerks to hide behind the statement of last Monday.
Madam Speaker: I must make it quite clear that the Clerks of the House hide behind no statements. They are available to help any hon. Member from any part of the House, and they do so willingly. The hon. Gentleman's point is somewhat hypothetical, but I understand his concerns. I am certainly not going to give a ruling about it, but perhaps he will attempt to table his questions and we shall see where we go from there.
Mr. Dennis Skinner (Bolsover): On a point of order, Madam Speaker. Is there any way in which a statement can be made by the appropriate Minister, not necessarily the Chancellor of the Exchequer, as it has now been discovered that, over the years, Barings bank allocated more than £700,000 to Tory party coffers? On the basis of that evidence and the collapse of the bank, I believe that the public demand a statement from the appropriate Minister so that we can question what has happened to that money and whether it should be paid back.
Madam Speaker: I refer the hon. Gentleman to the reply that I gave a little earlier.
Mr. Paul Flynn (Newport, West): On a point of order, Madam Speaker. You may recall that, three years ago, there was a frightening accident that involved many of my constituents and in which 108 people were injured in the Severn tunnel. You may be aware, too, that, three years on, the local fire brigade in Gwent has said that the safety improvements that it called for in the tunnel have not been carried out. Have you had any request from the Department of Transport to make a statement on this alarming situation?
Madam Speaker: I have had no request from the Secretary of State for Transport or from any of his Ministers to make a statement on that matter.
Mr. Stephen Timms (Newham, North-East): On a point of order, Madam Speaker. You may have seen, as I did, in this morning's press articles saying that the advisers who originally advocated the programme of hospital bed closures in London have now changed their minds and have acknowledged that that is extremely damaging. Have you had any word from the Secretary of State for Health to the effect that she intends to announce that she has changed her mind as well?
Madam Speaker: Let me make it clear to all hon. Members who wish to know whether a statement is to be made today that none will be made today. If any were to be made news to that effect would be put on the annunciator by 1 o'clock. We shall now proceed with the business of the House.
Order for Second Reading read.
The Secretary of State for the Home Department (Mr. Michael Howard): I beg to move, That the Bill be now read a Second time. As the whole House will agree, any miscarriage of justice is a serious matter, not only for the person wrongly convicted, but for all of us, because it affects public confidence in the criminal justice system. 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. We have done a great deal in recent years to improve the operation of the criminal justice system. Measures range from the Police and Criminal Evidence Act 1984 to the Criminal Justice and Public Order Act 1994, from the tape recording of interviews with suspects to the establishment of the first comprehensive national DNA database anywhere in the world, and from improvements in police training to the great strides made in forensic science. Major advances have been made in the fight against crime and in protecting the public. The Bill represents the next step. It will create the new and independent arrangements for identifying possible miscarriages of justice, and it will reinforce and extend the powers of the courts in criminal appeals. In so doing, it implements some of the key recommendations made by the Royal Commission on criminal justice in July 1993.
My current powers to refer cases to the Court of Appeal as a last resort have been in place since the turn of the century. They have served us well in the past, but there is now universal agreement that a fresh approach is needed. In particular, 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. The Bill fulfils those aims.
I make no apology for refusing to rush into legislation. The Bill contains the most significant changes to the structure of our criminal appeals system for almost 30 years. My right hon. and learned Friend the Secretary of State for Northern Ireland and I thought it right and necessary to consult in detail about our proposals, and we have benefited greatly from the opinions and advice of many who work in the criminal justice system and beyond. The Bill is in three main parts. Part I clarifies and strengthens the powers of the respective courts of appeal in England and Wales and in Northern Ireland. Part II establishes the new criminal cases review commission. The two parts are, of course, closely linked. Part III extends the powers of magistrates courts to reopen cases to rectify mistakes.
The commission will examine cases in England, Wales and Northern Ireland and decide whether to refer them to the courts in the respective jurisdictions. It will be
Column 24independent, accessible and open. It will have strong investigative powers, and it will be well resourced. Between them, its members will bring to bear a wide range of qualifications and experience. They will need all those, because the task that they face is difficult and complex.
Mr. Andrew F. Bennett (Denton and Reddish): What is the Home Secretary's most up-to-date assessment of the number of cases that the new body will deal with in the first year? Will he confirm that it will not balk at any conviction as long as the person concerned is still alive?
Mr. Howard: It will have to take into account the criteria that are set out in the Bill. As I shall shortly say, we have made an assumption about the number of cases that the new body will deal with in its first year. If the hon. Gentleman will be patient I shall explain precisely what the assumption is.
The final decision on any case which is referred will rest either with the relevant Court of Appeal--if the case was tried originally on indictment-- or with the Crown court, or the county court in Northern Ireland, following a referral in a summary case. The courts will therefore continue to be responsible for determining all appeals whether made to them direct or on referral by the commission. That is the right approach; matters of guilt and innocence are properly for the courts to determine.
I come now to the detail of the Bill. All the provisions in part I either respond to the recommendations of the royal commission or else improve the operation of the Court of Appeal in other ways. The Bill places appeals against conviction on a point of law on the same footing as other appeals against conviction and sentence. Leave to appeal will be required in such cases except where the trial judge has certified the case as fit for appeal. That will provide a filter mechanism for appeals on a ground of law which are obviously without merit.
The Bill clarifies the grounds for allowing and dismissing an appeal. The present formula involves three overlapping grounds and is widely felt to cause confusion. Under the Bill, the Court of Appeal will allow any appeal where it considers the conviction unsafe and will dismiss it in any other case. That simple test clarifies the terms of the existing law. In substance, it restates the existing practice of the Court of Appeal and I am pleased to note that the Lord Chief Justice has already welcomed it.
Mr. Jack Straw (Blackburn): As the Home Secretary will know, the royal commission suggested a rather different test--that the conviction should be set aside if it is or may be unsafe. The test in the Bill is that it is unsafe. It appears to Justice and others that that may be a much more narrow and restrictive test than the royal commission had in mind. Will the right hon. and learned Gentleman give the House his observations on that?
Mr. Howard: The test in the Bill is the result of our consideration of the matter in the light of the consultation exercise. It is a simple test, a straightforward test and, I believe, an easily understandable test. As I said, the Lord Chief Justice has already welcomed it. That is why we have opted for the test in the Bill. I have no doubt that the hon. Gentleman's point will be the subject of detailed consideration in Standing Committee.
Column 25The Bill also 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 of beginning or continuing an appeal on behalf of a person who has died.
The respective Courts of Appeal in England and Wales and Northern Ireland will also be able to direct the new commission to investigate certain matters relating to an appeal before the court and to report their findings to the court. I think that that power will rarely be needed, but it is there for the exceptional case and it is an important addition to the court's powers to remedy wrongful convictions.
Part II of the Bill establishes the criminal cases review commission with powers to investigate possible miscarriages of justice and refer appropriate cases back to the courts. It will be able to refer a case on grounds of conviction or sentence or both, as I may already do at present; and it will be possible for the first time to make referrals in summary cases.
The commission will be independent both of the Government and the courts, with members appointed by Her Majesty the Queen on the recommendation of the Prime Minister. There will be a chairman and a minimum of 10 other members. At least one third of the members at any one time will be legally qualified and at least two thirds will have relevant experience of the criminal justice system. All appointments will be made on the basis of the particular experience, expertise and other abilities that the applicant will bring to the work in hand. All the posts on the board of the commission, including that of chairman, will be advertised publicly. We want the best candidates for the job and we think that this is the best means of ensuring that.
We have provided sufficient resources to enable the commission to deal with its expected case load as swiftly and effectively as possible. We have assumed that it may receive, at least initially, at least twice as many representations as come to the Home Office and the Northern Ireland Office at present. The commission will need to employ up to 60 staff, which is about three times the number currently engaged in such work within my Department and the Northern Ireland Office. Although the recruitment of its staff will be a matter for the commission, we expect that its staff will reflect the broad mix of legal, investigative and administrative skills and experience needed to do work of this sort. As with the posts of the members, those of the commission's staff will be filled by open competition following advertisement.
As Home Secretary, I will remain responsible for the law under which the commission will operate, but I will take no part in its day-to-day decisions and administration--those will be matters for the commission. The Bill does require the commission to keep proper accounts and to submit an annual report to me. I will lay that before Parliament. The accounts will also be laid before the House following their audit by the Comptroller and Auditor General.
At present, the only means at my disposal and at the disposal of my right hon. and learned Friend the Secretary of State for Northern Ireland for correcting a miscarriage of justice in a summary case is to recommend to Her Majesty that she grant a free pardon under the royal prerogative of mercy. But although a free pardon removes the effect of the punishment, it is clearly unsatisfactory that it does not quash or reverse the conviction. That is
Column 26something that only the courts can 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 the county courts in Northern Ireland respectively.
Most miscarriages in summary cases are straightforward. They do not require detailed investigation of the sort that the commission will undertake before referring any case to the courts. The Bill therefore provides a simpler remedy for the straightforward case. It extends the existing powers of magistrates courts in England and Wales to reopen cases to rectify earlier errors where that would be in the interests of justice, irrespective of the plea entered at trial. The Bill makes comparable provision for Northern Ireland. That is an entirely new power for the Province.
In view of the changes that will be made as a result of the Bill, we have also considered whether the royal prerogative of mercy should continue to be available in conviction cases. Like the royal commission, we have concluded that it will still be needed for the very exceptional case--but only the very exceptional case. For example, it will still be needed where there is new evidence which, for some reason, is inadmissible.
The decision as to whether I should recommend the exercise of the prerogative in relation to any conviction usually necessitates some investigation of the facts of the case. The Bill therefore gives me and my right hon. and learned Friend the Secretary of State for Northern Ireland power to refer any matters requiring investigation to the commission. That will ensure that any inquiries needed will be undertaken by a body empowered and resourced to consider possible miscarriages of justice.
It is vital to the success of the new arrangements that Ministers are not seen as an alternative to the commission or as a court of appeal from its decisions. The new power enables Ministers, in reaching a decision on the exercise of the prerogative in relation to a conviction, to rely on the results of any investigations already undertaken by the commission and, where inquiries may be needed, to ensure that the commission has the opportunity to fulfil its proper function, thus obviating the need for any separate investigations to be carried out under the auspices of Ministers.
The Bill gives the commission all the powers that it needs to carry out its investigations effectively and thoroughly.
Mr. Chris Mullin (Sunderland, South): Will the Secretary of State give way?
Mr. Howard: If the hon. Gentleman will restrain himself for a moment, he will find that I am about to deal with the points that I anticipate he is going to raise.
The commission 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, 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 police force from that which investigated the crime originally; it will be able to insist that it approves the choice of the officer appointed before an investigation takes place; it will be able to commission its own expert opinions and tests; and it will have power to obtain access to documents held by police forces and other bodies.
Column 27The commission will also be able to obtain relevant papers and other material held by me and by my right hon. and learned Friend the Secretary of State for Northern Ireland as a consequence of our having considered possible miscarriages of justice cases under our existing powers. It is clear from this that the commission will initiate and take responsibility for any investigations undertaken on its behalf by the police and other public bodies.
We believe that, in the majority of cases, the commission must have access to the knowledge, expertise and other resources of the police. Indeed, we think we would be doing the cause of justice a gross disservice if we denied the commission access to the wealth of expertise available in police forces. I am aware of the concerns expressed on this point by the hon. Member for Sunderland, South (Mr. Mullin).
Mr. Mullin: And by one or two others.
Mr. Howard: Plainly, one or two others. The hon. Gentleman believes- -
Mr. Mullin rose --
Mr. Howard: If the hon. Gentleman will forgive me, I shall continue for a moment.
The hon. Gentleman believes that the use of the police in the manner that I have proposed is a fatal flaw in the new arrangements. He says that it flies in the face of almost all the advice that I have received. I pay tribute to the hon. Gentleman's work over the years as a standard bearer for the cause of those who have been wrongly convicted, but I must take issue with him on this point. The Government's proposals do not run counter to all the received advice--far from it. They are in line with the royal commission's recommendations. Indeed, the royal commission concluded that there was "no practicable alternative" to the commission using the police, given
"the size and scope of the inquiries"
needed in miscarriage cases. Most of those who have responded to our consultation papers on this point, including Viscount Runciman, the chairman of the royal commission, the Police Complaints Authority, the Bar Council and the Justices' Clerks Society, as well as the representatives of the police services, agreed that the new body should be able to commission investigations from the police. Many of the best-known cases in recent years came to notice through the efforts of the hon. Member for Sunderland, South and others. Each, crucially, required thorough police investigation to uncover the evidence on which the cases were referred and the convictions quashed. The cases of the Guildford Four, the Birmingham Six, the Darvell brothers, who were convicted of the murder of a Swansea sex shop manageress in 1986, and Stefan Kiszko are all examples of referrals following patient, thorough police work.
The Bill requires the commission to be satisfied before making a reference that there is some new element, whether argument or evidence--
Sir Ivan Lawrence (Burton): Will my right hon. and learned Friend not shut his mind to the fact that there is a body of young, retired police officers who do not have
Column 28a great deal of future, as the system presently operates, within the criminal justice system, in which they have massive expertise? Would he consider the possibility of having a panel of retired police officers, which might go some way towards answering the concerns of the hon. Member for Sunderland, South (Mr. Mullin) because the people concerned would not be serving members in a police force? They could, nevertheless, deploy their expertise in the taking of statements and the investigation of possible miscarriages of justice and, thereby, continue to make a contribution to the criminal justice system when, in all other circumstances, they would have to seek fresh pastures elsewhere. That might also relieve the pressure on police forces.
Mr. Howard: I have no doubt that the point raised by my hon. and learned Friend will be considered in Committee. I cannot pretend that I am immediately attracted to it. I confess that I think that the natural people to whom the commission will want to turn, having regard to the fact that the commission will have the power to direct and supervise closely the investigations that are conducted on its behalf, will be the police.
I do not accept that there is anything unsatisfactory about the police carrying out these investigations. I have already said that they are entitled to the credit for the investigations that have been carried out in the past. It will, of course, be possible, as I have said, for the commission to go to a different force. I am not immediately attracted by the suggestion of my hon. and learned Friend the Member for Burton (Sir. I. Lawrence). No doubt it can be considered further in detail in Committee.
Mr. Mullin rose --
Mr. Andrew Miller (Ellesmere Port and Neston) rose --
Mr. Howard: I should give way first to the hon. Member for Sunderland, South.
Mr. Mullin: Does the Home Secretary accept that no one is suggesting that all investigations should be kept away from the police? What people are suggesting--and just about everybody who has first-hand experience of dealing with miscarriages of justice suggests this--is that the commission should have a reserve power which would enable it to order investigations by people who were not police officers if it appeared that the police were not trying hard enough. I am sorry to say that in some of these cases, that has been so. Cardinal Hume, in a letter to The Times today, which I am sure the Home Secretary has seen, makes precisely that suggestion. Will the Home Secretary respond to that?
Mr. Howard: Yes, I have read the cardinal's letter. He suggests that the powers available to the commission to direct and supervise inquiries carried out in such cases are unduly limited. I very much hope that he will reconsider that view when he has had more of an opportunity to study the terms of the Bill, because the key to the matter is that there are no sensible limits on the power of the commission to direct and supervise the inquiries that are carried out on its behalf. The answer to the concerns expressed by the hon. Member for Sunderland, South is to be found in that power of direction and supervision.
Column 29I do not accept the hon. Gentleman's premise that the police have been dilatory in the past. Whether or not that is the case--it is not an argument that we need to get into this afternoon--the new body will have available to it powers of direction and supervision, and will have available on its staff those whose expertise and experience it needs to ensure that the powers are used effectively so that the necessary investigations carried out on its behalf are thorough, expeditious and effective. We must look to those powers to meet the concerns expressed by the hon. Gentleman.
Mr. Miller: The Home Secretary will be aware of a dilemma in a particular case, because we have corresponded about it. I will not mention it in detail, because it would be improper to do so at this stage, but the investigating authorities have changed several times during the investigation. Police officers have retired in mid-stream and other changes have occurred which have caused a great deal of consternation in that case. Will he assure the House that the powers of appointment, which he envisages being vested with the new commission, will be used to ensure that the police officers appointed to a case, according to his model of the authority, will be in place for the duration of an inquiry and under the sole control of the commission?
Mr. Howard: I think that the hon. Gentleman would accept that it is not always possible to predict the retirement of police officers. It is not always possible to predict that a police officer appointed from the best of motives and with the best intentions, on the basis that he will deal with a particular inquiry for its duration, will continue to be available to do that. Life is, by its very nature, unpredictable.
Subject to that, I see no reason why the commission, when discussing with a chief constable the arrangements to be made for carrying out a particular investigation, should not seek assurances that the chief constable will use his best endeavours to choose officers who will be available for the duration of the investigation to obviate the kind of difficulty to which the hon. Gentleman has referred.
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. That is a broad and sensible criterion. It clearly defines the boundaries between the commission's functions and that of the courts. There is no purpose in the commission referring a case where there is nothing new for the courts to consider--indeed, it would be unhelpful if the legislation appeared to leave that possibility open.
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 have already said, it is for the courts to decide whether any appeal is to be allowed or dismissed. We 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 investigation into their case, and that they should be given a full and reasoned explanation of any decision not to refer their
Column 30case 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. Subject to the need to preserve confidentiality, the commission will 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, they can make further representations to the commission in the light of any matters found.
Investigating possible miscarriages of justice can raise sensitive issues, which need careful handling. The Bill therefore makes it an offence for a member of the commission or one 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 provided in the Bill are sufficient to enable the commission to disclose relevant information in the way that I set out earlier.
The public are rightly concerned about the quality of criminal justice. They demand a system which is effective in every respect and in which they can have confidence--confidence in relation to justice for victims, justice for defendants and justice for society. The Government will not shrink from their duty to provide what the public rightly expect. Our strategy is ambitious and far reaching, and it is broad. It is both careful and valuable. It is concerned with safeguards for the innocent, as well as with the apprehension and punishment of the guilty.
The Bill is of the greatest importance in promoting the aim of a criminal justice system which is strong, effective and fair, and in which the guilty are justly punished and the innocent have nothing to fear. I think that it will be widely welcomed and I commend it to the House.
Mr. Jack Straw (Blackburn): The Labour party supports the Bill and will give it an unopposed Second Reading tonight. However, as I shall explain, we have serious reservations about some of its aspects, particularly those relating to the form of investigation undertaken by the proposed commission. We shall pursue those reservations in detail in Committee and on Report.
The Bill's central proposal, for a criminal cases review commission the better to investigate miscarriages of justice, formed one of the key sets of recommendations of the royal commission on criminal justice, which reported in June 1993. Although the terms of reference were wide, the royal commission owed its very establishment to mounting public concern about the ability of the criminal justice system to secure justice for the Birmingham Six and, before them, the Guildford Four and the Maguires.
The royal commission was, commendably, appointed by the then Home Secretary, the right hon. Member for Mole Valley (Mr. Baker), who I see is in his place today, on the day the Court of Appeal quashed the sentences of the Birmingham Six, who had been convicted of murder following bomb explosions in public houses in Birmingham in November 1974 and had served more than 16 years in prison for crimes that the Court of Appeal finally found that they had not committed.
Column 31Although the number of miscarriages of justice is a tiny proportion of the total number of criminal cases processed in any one year, the effect of such miscarriages on public confidence is huge. On the issue of public confidence, the royal commission said:
"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. In addition to the terrorist cases where the convictions were quashed in 1990 and 1991, there has been since our appointment a fourth such case (Judith Ward) where the conviction was quashed in 1992. There has also been a number of cases not connected with terrorism, the most notable examples being those of the Broadwater Farm Three, Stefan Kiszko, and the Cardiff Three. We are particularly concerned that the last occurred after the implementation of the Police and Criminal Evidence Act 1984 and its related codes of practice."
The royal commission continued:
"the damage done by the minority of cases in which the system is seen to have failed is out of all proportion to their number. The maintenance of law and order is critically dependent on public goodwill, not only in the need for the law as such to command general assent but in the dependence of the police, whose duty it is to enforce the law, on the willingness of individual citizens to cooperate with them. The proportion of crimes solved by the police without help of any kind from members of the public is negligible, and the ability of the police to perform their function is impaired twice over if victims and witnesses are unwilling to give evidence in court because they no longer believe that trials are conducted fairly."
A miscarriage of justice involves the conviction, and usually imprisonment, of the innocent, but it also involves the escape of the guilty. Those who committed the outrages in Guildford and Birmingham have not spent one day in prison for those crimes. However, in any fair system of criminal justice, the burden of proof must be weighted in favour of the accused because of the extreme consequence to an individual and his or her family of a wrongful conviction. I have nowhere read a better description of the peril of miscarriage of justice than that given by the parliamentary ombudsman in the Preece case. He said:
"A miscarriage of justice by which a man or a woman loses his or her liberty is one of the gravest matters which can occupy the attention of a civilised society. And it seems to me that when an unprecedented pollution of justice at its source is discovered, quite an exceptional effort to identify and remedy its consequences is called for."
From 1907 until the Bill before us, the source of that exceptional effort to identify and remedy each miscarriage of justice has been the Home Secretary, acting on the advice of officials. Over time, and under pressure from Committees of the House and groups outside the House, such as Justice and the National Council for Civil Liberties, those powers of the Home Secretary and the parallel powers of the Court of Appeal have been widened a little.
None the less, as Sir John May noted in his report on the Maguire case, officials and Ministers have consistently adopted strict self-imposed limits on their discretion to refer cases back to the Court of Appeal. Sir John May said at paragraph 10.7:
"However, there is no doubt that the criterion so defined was a limiting one and has resulted in responsible officials within the Home Office taking a substantially restricted view of cases to which their attention has been drawn, as it was in the case of the Maguires. The very nature and terms of the self imposed limits on the Home Secretary's power to refer cases have led the Home Office only to
Column 32respond to the representations which have been made to it in relation to particular convictions rather than to carry out its own investigations into the circumstances of a particular case or the evidence given at trial. As it was expressed to me on a number of occasions in the course of the evidence the approach of the Home Office was throughout reactive, it was never thought proper for the Department to become proactive".
Although that attitude is understandable, given the importance of the separation of the judicial process from political decision making, it has led to a number of miscarriages--no one knows what the total might be-- escaping the net. It was the feeling that the current system had fundamental flaws which led the law reform group, Justice, in 1968 to recommend independent machinery similar to, although not the same as, that now proposed in the Bill.
That proposal by Justice was followed by the all-party Home Affairs Select Committee report in 1982, recommending independent machinery similar to that contained in the Bill--recommendations which, sadly, were rejected by the Government of the time.
In 1988, Sir John Farr, a former distinguished Conservative Member of the House, together with my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), moved amendments to give effect to the 1982 proposals of the Home Affairs Select Committee. Sad to say, those were rejected at that time on behalf of the Government by the right hon. Member for Oxford, West and Abingdon (Mr. Patten).
The fact that it has taken more than 20 years' pressure and the incarceration of some innocent people for almost as long a period to persuade Ministers and their advisers of the need for change will, I hope, lead to some humility and cause the same Ministers and advisers to be ready to listen to some important criticisms that we and others have to make of the Bill's scheme of operation.
By their nature, miscarriages of justice arise when there is a failure by police and prosecuting lawyers or by defence lawyers. Those miscarriages have often been compounded by failures in the existing official and ministerial system for considering allegations and referring them to the Court of Appeal.
The Bill clearly recognises the unsuitability of having Ministers make not just so-called quasi-judicial decisions but almost wholly judicial decisions on referrals. That position is remedied by transferring that power to the new commission. The Bill also implicitly recognises that it would be inappropriate for those directly responsible for the prosecution process to be involved in judging whether that process has operated properly in specific cases, or whether it has contributed prima facie to a miscarriage of justice. At no stage, therefore, in the Bill's scheme are the Director of Public Prosecutions or the Crown Prosecution Service given any role to investigate failings by prosecuting lawyers, even if it could be argued that CPS staff are more likely to be au fait with that prosecuting process.
The Bill establishes a new separation of powers in respect both of Ministers and of prosecuting lawyers. In commendably achieving that separation of powers, there is no implication that the public no longer have confidence in Ministers or lawyers to make fair-minded decisions. However, there is a strong implication that justice must not only be done but be seen to be done and that a clear separation of powers, visible and transparent, is therefore required.
Column 33The Home Secretary made that point in his speech commending the Bill to the House when he said that the commission will be "constitutionally separate from and visibly independent of Government and the courts".
That is entirely correct, but I find it difficult to understand why the Home Secretary expresses with such clarity the need for that body to be visibly independent from the courts and from Ministers but does not apply the same clarity when it comes to the need for it to be visibly independent from the police.
There is no clear separation of powers when it comes to the role of the police in investigating alleged miscarriages of
justice--notwithstanding the fact that a high proportion of serious miscarriages of justice are likely to involve the police and may include anything from an innocent misjudgment on their part about the credibility of a key witness to serious misconduct of an investigation, including perjury by some of the officers concerned. Clause 19 gives the commission the power to direct and supervise investigations, but the investigations will generally be carried out by the police. Under clause 18, the basic duty of investigation falls on the chief constable of the force which investigated the original offence. When the commission requires an officer from a different force to investigate a matter, the original chief constable may choose from which force he should come.
I do not believe that the scheme is right in principle. It would be far better if the system of investigation were independent, and were seen to be so. It would be better for public confidence in both the criminal justice system and in the police, and it would save money in the long run. I am not criticising the police, any more than the Home Secretary was criticising the courts or Ministers by proposing a clear separation between them and the commission. I have the highest regard for the police and the difficulties that they face in pursuing the duties that we impose on them, but if the police are seen as judge and jury in their own cause public confidence in them and in the system will not be properly established.
As the Home Secretary said, the new scheme is based on a parallel with the Police Complaints Authority. When I first came entered Parliament I took an extremely close interest in the handling of police complaints and I must say that I do not regard the Police Complaints Authority parallel as helpful. I know of the dedication and commitment of the authority's staff and its members, and I know of the exacting standards that senior investigating officers and their teams of police officers set in seeking to root out corruption and other unacceptable practices committed by a tiny minority of police. No group is more offended by corruption or malpractice in the police force than the 99.9 per cent. of police officers who do a difficult job exceptionally well and to the highest standards. Despite the commitment and dedication of the PCA and of police at all levels, however, the unpalatable truth about the Police Complaints Authority is that it has failed to instil public confidence because the public believe that, under this system, the police are investigating themselves.