|Previous Section||Home Page|
Column 47of inviting the journalist who has taken a close interest in the case to Devon for an informal chat in a pub, where the assistant chief constable, Mr. Portlock, made that plain.
Mr. Portlock appeared to overlook the fact that the journalist might then talk to me, and that I might mention what had been said in Parliament, which I did the next day. A couple of days after that, the journalist from the Western Morning News received an anonymous telephone call telling him that I had an undeclared interest--my name appears on the notepaper of the "Just Television" programme. That is an unpaid interest from which I gain absolutely nothing. That information could have come only from someone connected with the inquiry. That is how Devon and Cornwall police are dealing with the Brian Parsons case, and it does not inspire confidence.
As my hon. Friend the Member for Blackburn said, resources are being wasted. Millions of pounds have been wasted on phoney police inquiries that are not intended to go anywhere. It would be cheaper to give the commission the power to conduct some of its own investigations. Some of the police inquiries have proved extremely wasteful. Enormous amounts of money have been spent interviewing people who did not need to be interviewed.
In some cases, the results of the inquiries--I think of the reinvestigation by West Midlands police into the Birmingham pub bombings--were selectively leaked to national newspapers in an attempt to rescue some of their friends, who were on trial for misbehaviour. I repeat what I said earlier to the Home Secretary and what he does not accept: to insist that only the police are capable of inquiring into misbehaviour by police officers flies in the face of just about all the advice that he has received from people who have a first-hand interest in these matters. I do not accept the royal commission's rather reluctant conclusion that there is no practical alternative. The deputation that Cardinal Hume leads takes a close interest in these matters and may share my views, if his letter in The Times today is anything to go by. I note that that deputation contains two former Home Secretaries and one Law Lord, so I do not feel entirely alone on the point that it is sufficient to leave such matters to the police. I cannot understand why the Home Secretary clings to that view. It cannot be on grounds of cost. That policy is more expensive. He may cling to it out of misplaced loyalty to the police, but nor is it in the interests of the police that we continue with it. My hon. Friend the Member for Blackburn was generous when he discussed the role of the police in these matters and said that he was not referring to the 99.9 per cent. of police officers who were honest. I think that 99.9 per cent. is a little on the high side; I put it no more strongly than that. I am sorry to say that in some police forces, especially in elite detective squads--I know that many Conservative Members are concerned about this, because they have privately expressed this view to me--a culture of perjury grew up over the years. One senior police officer referred to it as noble cause corruption. He meant that if the goal was thought to be worthy, the means did not matter very much.
I well remember that, at the height of the various scandals involving the Birmingham, Guildford and Judith Ward cases, I attended a reception at the Police Federation. A senior member of the federation executive said to me quietly in the corner, "There is nothing wrong
Column 48with perjury committed by an honest police officer in support of a good cause." That thinking reflects-- [Hon. Members:-- "To you?"] Yes, he said it to me of all people.
I am afraid to say that such thinking has infected many police inquiries. It is not right to say that we are talking only about the odd police officer. I repeat that I accept that there are many honest police officers who are as concerned as the rest of us about what has gone on. However, the Guildford and Woolwich cases and the Birmingham case involved fraud and perjury on a massive scale. It was carefully co-ordinated. Police officers must have sat in lecture halls and worked out what they intended to do to get it right.
The fraud and perjury involved officers ranging in rank from detective constable to assistant chief constable. In the Birmingham case, two of the officers who were involved in the investigations and the subsequent cover- up became chief constables. In those circumstances, one cannot expect a police inquiry into the activities of other police officers necessarily to lead to the right result, especially in cases of such seriousness.
I now turn to the transition period. The commission will not be set up for a while and there are a number of cases in the in-tray of the Home Secretary which should not wait until it is set up and running. The obvious one, to which I have already referred, is the Carl Bridgewater case. I take the Carl Bridgewater case and the handling of it as a litmus test of the new seriousness that is alleged to be abroad on the issue. It is a litmus test of whether we are serious in facing up to things that have gone wrong.
The right hon. Member for Mole Valley (Mr. Baker) said that he attempted to speed up the consideration of cases in which people had been in prison for a long time. Two of the defendants in the Bridgewater case have been in prison for more than half their lives. The case against them has comprehensively collapsed. The foreman of the jury at the trial has been on national television saying that the jury would never have convicted if they had known what is known today. Surely the time has come to draw a line under the case. I hope that the Carl Bridgewater case will not have to wait until the commission is set up. I say the same thing about the Brian Parsons case, to which I have already referred.
If the Bill is handled properly, it represents an opportunity to put behind us the bleak period in the history of British justice of the past few years. I hope that the opportunity will not be thrown away. The Home Office must have noticed that Labour Front-Bench Members are approaching the Bill in a generous spirit. We do so in the hope that the Government-- [Interruption.] I am afraid that the Minister is not even listening. I hope that I may have his attention for a moment.
Those of us who care about the issue are treating the Bill seriously and not in a party political way, because the issues involved cut across political parties. One of the great strengths of the campaigns against alleged miscarriages of justice is that it has always been possible, even in the darkest circumstances and at the most difficult times, to attract support across the House. The alliance between me and the former Member for Harborough is the starkest illustration of that proposition.
Column 49Labour will not oppose the Second Reading, because we want the Minister to take seriously some of the criticisms that have been made. We hope that the Committee stage will not turn into an adversarial process, such as we see in the courts, in which both sides try to outwit each other. We hope that we can come to conclusions that will set up a commission which will endure for many years to come and which will not easily be discredited.
Mr. Oliver Heald (Hertfordshire, North): I welcome the Bill, which is important if we are to maintain public good will and confidence in the criminal justice system. The hon. Member for Sunderland, South (Mr. Mullin) has done a great deal to bring to the attention of the House and of the country at large miscarriages of justice--
Mr. Heald: As a barrister, I am willing to give credit to the hon. Member for Sunderland, South for bringing to the attention of the criminal justice system and of the public cases such as that of the Birmingham Six and the Guildford Four, which have been dealt with on appeal. I agree that it was a sad reflection on the system that it took so long for those people to have their convictions quashed. It is important to realise that the culture in the law is based on a reluctance to change the results of trials by jury except in the most exceptional circumstances. The role of the jury is seen by lawyers as very much the gold standard. They feel that it is important that 12 good men and true have listened to the evidence in the case, have heard the arguments and have been there during the adversarial contest, which is often very much criticised but which involves testing the evidence and ensuring that each argument is put to the test.
I still believe strongly that our Crown court, with the judge and jury working together--the judge as judge of the law and the jury as judge of the facts--has a special place, and that we undermine it at our peril. Although I welcome the Bill as dealing with issues of public good will and confidence, and as bringing a measure of improvement to the system, I do not think that we should lightly criticise our jury system. It is wrong to throw out the baby with the bath water. That is why I especially welcomed the comments of the hon. Member for Blackburn (Mr. Straw), who seemed to take that point very much on board, as does my hon. Friend the Minister.
The three tests that the Court of Appeal has applied--whether the conviction is unsafe or unsatisfactory, whether there has been a mistake in the law, and whether there has been a material irregularity during the trial--are three aspects of the same test: whether the conviction is unsafe. To move under the Bill to a simple test of whether the conviction is unsafe is right. I know nobody who can tell me the difference between an unsafe conviction and an unsatisfactory one. Any decision that is wrong in law or which involves a material irregularity is, by its nature, unsafe. A simpler and more straightforward test is very much to be welcomed. I am concerned about the remarks by the hon. Member for Sunderland, South about inadmissible evidence. If we say, as we should, that hearsay evidence should not be sufficient to prove a case in court, it is inconsistent to say that one can present hearsay evidence to the court if it
Column 50may show that an aspect of the prosecution case is faulty. It is not evidence that can be tested. With the best will in the world, if the hon. Gentleman had given evidence to the Crown court in the case to which he referred, and if he had said, "I have spoken to others who admit the offence," how could the evidence have been tested? He would say, "I believed them." But how does a jury get to the root of that and decide what the truth is?
It is different from the normal situation when the members of the jury can see the man or woman who is giving evidence, can see their reactions to detailed, probing questions, who can see their body language and who can even see the look of fear that sometimes strikes a witness when the question goes in, the groundwork having been laid. That is what concerns me, because the hon. Member for Sunderland, South would get rid of the law of evidence as it relates to hearsay evidence. That law has protected defendants, and I believe that it exists for a good reason. I hope that he will reconsider his suggestion.
Sir Ivan Lawrence: I follow what my hon. Friend is saying, but did he support the ability of the Attorney-General to refer cases of inadequate sentence to the Court of Appeal? If he did, he accepted that Court of Appeal judges, who were not present at a trial and unable to see the witnesses' faces and the way in which they gave evidence, should be able to do something about the sentence, contrary to that which the judge at the trial had considered to be right.
Mr. Heald: As usual, my hon. and learned Friend makes an important point. There is a difference between deciding guilt and innocence and deciding a disposal in a case. My hon. and learned Friend should consider the test that a barrister would apply when deciding whether to advise that a case should go to appeal on the question of sentence. In those circumstances, the barrister must consider whether the sentence is completely out of the ball park, to use a slang expression, and thus obviously light when compared with the crime.
Mr. Michael Stephen (Shoreham): Is my hon. Friend aware that, before section 36 of the Criminal Justice Act 1988 came into force, the Court of Appeal regularly heard appeals from defendants who said that their sentences were too heavy? Section 36 merely redressed the balance in favour of the public, so that someone could appeal on behalf of the public if the sentence was thought to be too lenient.
A barrister would appeal a modest sentence only when he thought that it was quite outlandish that the judge had imposed such a modest sentence in a serious case. There is a difference between taking a view in principle about whether any case of that sort should warrant a sentence so low and looking at the niceties of the case, as my hon. and learned Friend the Member for Burton (Sir I. Lawrence) suggested, and saying that one did not have all the details of the evidence. I do not think that lawyers can employ that test when deciding whether such cases should be appealed on the grounds of sentence. Even if it could be argued that the jury would not be compromised by being presented with what is currently inadmissible hearsay evidence and by being put in the difficult position of having to judge the strength or weakness of evidence when that jury cannot hear the
Column 51person say what that evidence is, it would still be wrong if such evidence could be presented at the Court of Appeal stage. If that happened, the role of the jury would be undercut.
The jury may have heard admissible evidence and made a decision on the basis of evidence given by witnesses, but the would then be told, "Yes, you heard all that and made your decision, but we are prepared to overrule you on the basis of what somebody said somebody else had said." I do not think that that would add to the quality of justice in either direction. It would not mean that innocent people subjected to a miscarriage of justice would have their convictions quashed more often on appeal, or that the public would see those who are guilty more readily convicted and with full justice.
Although I understand the call for an elite corps, an Eliot Ness brigade of fighters for justice, I am concerned that an esprit de corps might be fostered in such a force. That would not be healthy. According to the Bill, the supervision and direction of the investigators is in the hands of the commission. The officers used to conduct investigations would be fresh faces and would not serve on each investigation. That means that there would be a turnover of investigative staff, who would look at the issues with a fresh eye. I would have imagined that Opposition Members would also want that type of staff.
Mr. Mullin: I agree that it is not necessary to have an elite corps employed by the commission, but what about the complaint made by Cardinal Hume in his letter today that the commission merely has a reserve power to instigate its investigations on an ad hoc basis?
Mr. Heald: That argument could be considered in Committee, but I would not want the Bill to give the commission additional powers or to create an elite force. That would not be necessary to achieve a proper investigation of cases. If a particular police force is being impeached in an investigation, there is no reason why another force cannot adequately provide investigators to look into the issues thoroughly. If expert evidence is required, the Bill provides powers for experts to be called in, tests to be done and expert inquiries to be made.
I find it difficult to see what would be achieved by giving the commission greater powers. If one held to the conspiracy theory that every police officer in the country in every force would be prepared to perjure himself to maintain a false conviction, that argument might have some force. The hon. Member for Sunderland, South has not suggested that, however, and has paid credit to police forces who have had to investigate difficult cases. The commission's power to direct and supervise the investigators is at the centre of the Bill, so I find it hard to understand why an elite force of investigators would be needed. They might run the danger of becoming rather sceptical as they investigated case after case after case. Its officers might even become case-hardened to pleas about miscarriages of justice. I am not sure that that force would necessarily work in the way suggested, and it might even be counter-productive. We must not forget that the police have an up-to-date fund of knowledge of investigative techniques and a proper sense of direction when asking questions of witnesses and testing evidence. They also have a network of intelligence available to them. When the size and scope
Column 52of an inquiry requires it, the police have available to them a wide range of resources to get at the truth. As has already been said, the inquiries are not always small ones requiring the examination of just a few witnesses; it is often necessary to trawl through mountains of evidence. Therefore, I believe that the present balance is about right.
The Police Complaints Authority has been criticised, but it is not quite correct to make an analogy between the authority and the new commission. The Police Complaints Authority has a different role, because it considers the way in which the police have behaved in particular cases on a disciplinary basis. That is a different kettle of fish from looking at a case which resulted in conviction and deciding whether fresh evidence has come to light or an argument was not been fully presented in court.
The hon. Member for Sunderland, South may have complaints about the Police Complaints Authority with which I probably would not agree, but we are not talking about the same type of operation. Given the type of operation suggested by the Bill, the involvement of the police--provided that they are supervised and directed
independently--has a lot to be said for it.
The hon. Member for Blackburn said that the Police Complaints Authority lacked public confidence because more cases arising from it are being brought before the courts. The reason is obvious: a lot of people who claim to have been wronged want a money judgment and substantial compensation for what they claim has happened. That is why they go to court. The number of appeals has risen in the current climate because courts are now prepared to hear those cases and to decide them in a way that they might not have been prepared to do a few years ago.
I do not believe that journalists should act as investigators in those cases. I have the greatest respect for journalists, who have rightly brought many cases to the public's attention, but they are not qualified to prepare a case for the Court of Appeal or to go into the detailed issues of admissibility of evidence and procedural irregularities. The hon. Member for Sunderland, South will have heard all the fine details argued in the Court of Appeal by extremely capable barristers acting for the appellants, and he knows that the niceties are dealt with in the Court of Appeal. Does he really think that journalists have the necessary skills to do that?
Mr. Mullin: No one is suggesting that they have. As the Home Secretary made clear, about a third of the members of the commission will be qualified lawyers, whom I would expect to help out in the event of a case being sent to the Court of Appeal.
Mr. Heald: The hon. Gentleman addresses a different point. I understood that his earlier point was that the investigators--those preparing cases for referral to the Court of Appeal--should include journalists. The skills necessary to prepare those cases for the Court of Appeal are not held by journalists. They are held by police officers, who are trained to take statements and look at the details of the law as they prepare a case. This, however, is different. I particularly welcome the provisions dealing with magistrates courts. For too long, minor offences such as failing to have a motor insurance certificate--such offences, though important, are minor in the overall scheme of things when compared with the serious cases that we have discussed--have inundated the Crown court
Column 53every day of the week. In case after case, the appellant turns up with his or her insurance certificate, and the appeal is allowed. The simple procedure that the Bill introduces will refer such cases back to the magistrates courts so that the document can simply be produced, whatever the plea, and the matter regularised.
The commission will want to review some magistrates court cases. Although they do not involve large sums of money and are not the most serious cases, they often involve an individual's reputation. We all know of magistrates court cases where tremendous stress has been caused as a result of conviction and loss of character. I welcome the fact that those cases can now be considered by the commission, taken back to court and dealt with speedily.
I am pleased to welcome the Bill and shall support it today. 5.32 pm
Mr. A. J. Beith (Berwick-upon-Tweed): The Liberal Democrats very much welcome the Bill. Indeed, when the Gracious Speech setting out the Government's legislative programme made no mention of it, we immediately sought an assurance from the Home Secretary that he had every intention of introducing it during the current Session. That assurance was forthcoming, and we told him that we wanted the Bill to make rapid progress.
The Bill is long overdue. A small number of miscarriages of justice have brought discredit on the system as a whole and caused a great deal of hardship. One thinks especially of the Stefan Kiszko case, which brought about a great deal of human misery. As the hon. Member for Blackburn (Mr. Straw) said, for all those who are wrongly convicted, others go free and are not pursued because a miscarriage of justice has occurred.
The criticisms and reservations that I make do not represent reasons for delaying the Bill. They are simply ways in which the Bill can be improved as it is considered in more detail. The foremost issue is that of the new commission's independence from the judiciary, the Home Secretary and the Government. Although considerable attempts have been made to safeguard that independence in the format of the Bill, much will depend on who is appointed to the commission. It is not yet clear whether the chairman will be a member of the judiciary. The Home Secretary did not refer to that, and I should be interested to know, at the close of the debate, whether the Government think that it would be inappropriate for a current member of the judiciary to switch to that post. There is widespread feeling that the chairman should be drawn from another direction--perhaps from the legal profession but not from the judiciary.
There must be a good choice of members of the commission, and the commission needs to be properly resourced. Today, the Government set out the procedures for advertising those posts. Those procedures are welcome and come as a new venture for Ministers. After all, only a week ago they appointed 76-year-old Lord Wyatt chairman of the Tote Board on a salary of £90,000 a year, without advertising for, or considering, other candidates. So the Government have turned over a new leaf this week and now propose to advertise posts. I hope that they are not surprised if we are a little cynical and suspicious about whether they will really do that, as bad habits seem to be firmly entrenched in Home Office practice.
Column 54The second crucial issue is the carrying out of investigations: who will do it and how? I broadly agree with the Government that police officers will be essential to the effective work of the commission. The pool of knowledge, ability, experience and training to do that job as well as it would be done by police officers simply does not exist outside the police service. It is therefore a question of the mechanism and structure in which police officers will be used for that purpose and whether we should go beyond the use of serving police officers and use retired police officers in some circumstances. Although alternative structures for that exist, the use of police officers will be essential.
The arrangements proposed do not even precisely follow those of the Police Complaints Authority, which is open to less criticism than has been made. A system whereby direct supervision is by a member of the authority, who is obviously not associated with the police, has considerable advantages. There would be some merit in getting closer to that format, but other methods could also be employed. We could have an established framework of officers who work directly for the commission, perhaps occasionally seconding more junior officers to it for periods of work.
I am a little reluctant about the setting up of a new national squad as a result of the commission, because one has a feeling that national squads come heavily under the influence of the Metropolitan police. That might not be an appropriate model and the Government must be a little cautious about the formula. I am not satisfied with the assumption that the commission will set in train an investigation, the chief constable will say, "I have a man who can do that," and only in exceptional circumstances will the commission say, "We would rather have it done by another force." That is how the Bill appears. The prevailing assumption should be that the investigation will be done from outside and therefore normally by another force and, where several forces have been involved in the original investigation and the commission feels that a free-standing group should investigate it in an exceptional case, by a unit to which officers can be seconded. The Government must look more carefully at alternative structures for using police officers, although I believe that police officers are essential for the conduct of those investigations.
Cost is an important issue when we consider how investigations are carried out. I do not know how Ministers can stand by the financial memorandum to the Bill, which says:
"it is not anticipated that the Bill will give rise to any extra demands on police resources."
If the commission is to direct an investigation to be carried out, if those investigations are sometimes more thorough than those carried out under the direction of the Home Office previously--in some cases, they will have to be, because they will go over cases already dealt with by the Home Office-- and if there is an initial rush of cases, as the Government anticipate in resourcing the commission, there will inevitably be pressure on police authorities' resources. Many police forces suffer from underfunding, not least because of the problems of the funding of police pensions, to which I have directed the Minister's attention before. Police authorities are, for the first time, open to capping--there are directly capped police authorities.
Column 55Clearly, there will initially be many extra inquiries. The police forces will have to follow the commission's directions on how to conduct the investigations--which may, rightly, be very demanding. I cannot accept that that will not place extra demands upon police resources. If we were to say that, we would be assuming that nothing would be done any better, more thoroughly or more extensively than was done in the past year under the present system. If that is what the Home Secretary is saying, he had better say openly that nothing will be done more thoroughly because the level of investigation will not cost one penny more than it did in the current year.
I am making a distinction between the costs of investigation and those for the administration of the commission. The Government have provided resources for the commission in recognition that it will be more expensive than the smaller Home Office unit. They have openly recognised and assumed that there will be many additional cases in the earlier years.
The Minister of State, Home Office (Mr. David Maclean): I am intrigued by the right hon. Gentleman's suggestion that cases are not being looked at thoroughly now, and that when the system changes and there is a criminal cases review commission, the police will consider cases much more thoroughly. He implies that the police are not thorough at present. I can assure the right hon. Gentleman that that is not the case. When the police are asked to investigate, they do so very thoroughly.
Mr. Beith: The point has already been made in the debate that a degree of direction by the commission over the police force will apply in future which did not apply in the case of the Home Office. As the former Home Secretary, the right hon. Member for Mole Valley (Mr. Baker) said, it would have been thought inappropriate in the case of the Home Office. The new system is bound to give rise to extra demands.
Ministers have conceded that there will be more cases. What will the Minister say when several chief constables say to him that he has told them not to spend one penny more on investigations under the new system than they did under the direction of the Home Office, but current investigations are costing them more? Will the Minister say that that will be taken into account in the financial arrangements of police authorities?
It is simply not a tenable proposition to say that the new system will not cost one penny more for the police forces who are doing the spadework. If that were so, the new investigation system would be second-rate--I do not think that that is the Government's intention or what the Bill provides for. I am sure that no self-respecting commission would put up with that. There will be a degree of thoroughness that will cost money, but the Government have not taken account of that.
Clause 2 requires the Court of Appeal to allow an appeal where a conviction is unsafe, but the royal commission suggested quashing convictions that may be unsafe. There is a certain neat logic: to the logical mind, a conviction is either safe or unsafe. If it may be unsafe, it is unsafe--there should not be a reason for a middle category. However, many experienced people believe that narrowing the test will make it significantly more restrictive.
Column 56In people's minds there is a lurking doubt that the conviction may be unsafe rather than actually being unsafe. That fear that a more restrictive test than that proposed by the royal commission will exist in practice constitutes another of the worries about the Bill. The Government rightly prayed in aid the royal commission and all the work that it did. It must be a matter of concern that the test appears to be narrower.
There are also concerns about disclosure of evidence. The commission has extensive powers to demand information, but the Home Office department C3 is exempted from the disclosure requirements. It is even possible that the commission will unintentionally and unnecessarily repeat C3 investigations and analysis, which could be expensive. The Bill places no explicit obligation on the commission to release evidence on which appeal application has been denied. That has previously been judged as unfair under the present system because it denies the appellant the opportunity to question the evidence on which his application is refused.
Clause 23 sets out exceptions to the duty of confidentiality, but no overt requirement for disclosure in such circumstances. That issue requires further attention.
Although anxieties remain about ensuring the independence of the body, about the structure by which we use police officers in investigations, about the costs to police authorities and other matters, the Bill is welcome. I hope that it will soon be on the statute book and in operation.
Sir Ivan Lawrence (Burton): The sheer size and complexity of the Bill is the complete answer to those who criticised my right hon. and learned Friend the Home Secretary for being slow to bring before the House a measure to end miscarriages of justice. With no draft scheme recommended by the Runciman royal commission and no unanimity about many of the details, a period of consultation followed by close consideration was vital, and took time. We have had enough bad legislation placed on the statute book in haste to justify the careful consideration that the Bill has been given. My right hon. and learned Friend is to be congratulated on producing a worthy Bill that will go a long way towards restoring public confidence in our criminal justice system.
I have reservations about the detail, but I hope that nothing that I say will be taken as a vote of no confidence in the Bill, which takes a substantial step forward. It is just possible that the Bill may be improved between now and its final passing if attention is paid to the various points raised by hon. Members on both sides of the House.
We have already taken considerable steps to ensure that there are many fewer miscarriages of justice than in the past. Tape-recorded interviews have been the greatest single contribution towards the improvement of the criminal justice system. They are now in force, working well and helping to raise the standing and appreciation of police officers' work. Police officers are no longer being constantly attacked for dishonesty in every criminal case because the truth of what was actually said is recorded in the tape recorded interviews. Where those tape-recorded interviews amount to nothing, the burden is placed much more firmly on the prosecution to produce other good evidence of guilt. That in itself tends to reduce the possibility of miscarriages of justice.
Column 57The independent Crown Prosecution Service standardises the prosecution of offenders and removes the bias previously thought to exist when the police prosecuted. The Police and Criminal Evidence Act 1984 lays down strict criteria governing the production of police evidence and acts as a deterrent to police wrongdoing. That is a saving factor against miscarriages of justice.
Another development has been electrostatic document analysis, which detects inconsistencies and has helped to bring to a more satisfactory conclusion terrorist cases involving miscarriages of justice. There have been improvements in forensic science investigation. There is judicial recognition of the possibility of identification error, which has led to judges having to give guidance to juries about being careful with any identification evidence. We have also seen improvements in the training of barristers and the sharpening of the facility to cross-examine--one of the strongest defences against miscarriage of justice. There have also been improvements in the training of judges to alert them to the possibility of miscarriages of justice.
All those factors have made miscarriages of justice much less likely to occur today than was the case in the 1970s. However, we must continue to improve the processes of investigation and trial to avoid unjust convictions. The provisions in the Bill to improve the work of the Court of Appeal have made a substantial contribution towards improving the system. The court has not always been able to detect miscarriages of justice, so improvements in the appeal stages were recommended by the royal commission chaired by Lord Runciman and form an important part of the Bill.
If the Court of Appeal suspects a miscarriage of justice, it has limited powers. It can quash a conviction or order a retrial. It is perhaps sensible to simplify the overlapping grounds on which at present a Court of Appeal can allow an appeal--because the verdict is unsafe or unsatisfactory, or there has been a wrong decision in law, or there was a material irregularity in the trial--to one test, of whether the verdict is unsafe. However, that depends on what "unsafe" means.
Let me take some examples of the problems that are likely to arise. A verdict may be unsafe because there comes to light evidence that would be inadmissible in law because it is hearsay, as in the case of Algar, about which I intervened with the judgment of Lord Chief Justice Goddard in the speech of the hon. Member for Sunderland, South (Mr. Mullin), or because it is inadmissible under section 76 of the Police and Criminal Evidence Act 1984.
What is the position as far as the Court of Appeal is concerned? Is the criminal cases review commission able to refer to it that type of evidence which might throw doubt on the safety of a conviction? I shall return to that later.
There is the other side of the coin. Let us suppose that the Court of Appeal says, "We have no doubt that the man is guilty on all the evidence, but the police lied about the circumstances in which they took the confession and, had the jury known that the police were lying about that, we cannot say that the jury would not have decided that the police were lying about other parts of their evidence; so we quash the conviction." The Court of Appeal would in effect be saying that the conviction was safe, but that it was thoroughly unsatisfactory, and therefore would
Column 58quash the conviction because it was unsatisfactory. However, we have deleted the requirement that the conviction be unsatisfactory as a basis for quashing a conviction.
Would such a defendant remain convicted in circumstances in which, at present, his conviction is quashed? It may well be a matter of pure justice that he should be convicted although the trial was unsatisfactory, but nevertheless obviously a problem is likely to arise unless we define better and more clearly what we mean by the word "unsafe".
There are also cases now in which the Court of Appeal says that a verdict is unsafe and unsatisfactory, yet the proviso is applied saying that nevertheless the conviction should stand. Common sense says that, if a conviction is unsafe, it should not stand, and it should not be allowed to stand simply because the reason for saying that it is unsafe is trivial. A conviction is either safe or unsafe. If it is unsafe, it should not stand. There should be no question of any proviso. Is not the logic of that that the proviso should be abolished? Will my right hon. and learned Friend the Home Secretary consider doing that in the Bill?
It is constructive that clause 4 lowers the threshold for the admission of fresh evidence from the standard of whether it is likely to be credible to whether it is capable of belief. However, in my opinion, it would be a great pity if the opportunity were not taken to allow the court to include any relevant or material evidence capable of belief that is not produced at the trial, even when the reason was negligence or error of judgment by the defendant's legal advisers, provided that it had not been deliberately left until the appeal before being produced. It always appears to me to be terribly unjust that the faults of legal advisers or counsel at the trial should lead to the quashing of a conviction.
Perhaps it is not necessary to include it in the legislation, but it might help to reduce the miscarriages of justice if the Court of Appeal used its power to order a retrial more frequently then it does, in circumstances where fresh evidence would require a jury's verdict and no harm would be done because of passage of time or the sensitivity of victims or even perhaps the sensitivity of the defendant.
I have perhaps said enough in a Second Reading speech to show that there may be problems with the wording of clause 2. I have had the privilege of reading a draft article by Professor Sir John Smith QC, who raises other doubts in addition to those, and I would advise my right hon. and learned Friend the Home Secretary to consider its contents before going firm on that clause.
The Society of Conservative Lawyers sub-committee on criminal justice and miscarriages of justice, which I was privileged to chair, said in its evidence to Lord Runciman that it was undesirable that miscarriages of justice, which were essentially a legal matter, should involve the Home Secretary so closely. Although all fair-minded and unbiased people would accept that there has been no reason for supposing that successive Home Secretaries have been other than impartial, the belief is sometimes fostered by Opposition Members and others that decisions were political. Media pressure and the representations of archbishops and others often appear to influence such references back to the Court of Appeal.
Column 59Further, the Home Secretary's guidelines appear to say that positive proof of innocence would almost need to be required before the Home Secretary refers cases back. As such references are based on the papers in the case, and the papers seldom show police dishonesty or wrong conclusions drawn by forensic scientists or eye-witness error, it is obviously sensible that that whole murky business of the Home Secretary's part in referring matters back should be cleared up once and for all. It follows that I very much welcome clause 3, which abolishes the need for the Home Secretary to refer cases to the Court of Appeal.
Potentially, the most important contribution of the Bill to the reduction of the number of cases in which an innocent person is wrongfully convicted is the establishment of the criminal cases review commission. That was recommended by all the people who have been mentioned, and by the Society of Conservative Lawyers in its evidence to Lord Runciman, as an additional filter to avoid injustice, because we did not think that the Court of Appeal was suited to perform the functions that we had in mind.
We recommended just such a board or commission as is contained in the Bill, but we made an addition that does not appear in the legislation. We said:
"A properly funded organisation would be needed under a Director adequately staffed by solicitors, investigators (who could be former police officers), accountants, computer experts and forensic scientists. They should be able to seek assistance from outside bodies. There must be access to relevant police and prosecution files and the body must have full investigative powers. Advice and directions could be given by a panel of senior lawyers."
It appears that that type of organisation is not what my right hon. and learned Friend the Home Secretary has in mind, which is a pity. There are very good reasons why the investigative body should be made up of police officers, and specifically there is a need for such investigators to have police powers. However, the sheer number of investigations per year, which might increase to the present number of referrals--800--and the strain that that would place on police forces, must raise the possibility of including people other than existing members of police forces. When Operation Countryman was going on, I heard that it was impossible for some police forces to operate properly because so many police officers were seconded to take part in that inquiry.
We must be cognisant of the public scepticism about police investigating police. We did something to address that concern by establishing the independent Police Complaints Authority and the Crown Prosecution Service. However, it was aggravated by Operation Countryman's complete failure to bring anyone to justice, notwithstanding what was generally considered to be a thoroughly unsatisfactory situation. It was widely believed--I think with good reason--that nothing came of Operation Countryman because it was a case of police officers investigating police officers.
I made the point by way of intervention during my right hon. and learned Friend's speech that many excellent, young though retired and experienced police officers--some of them of senior rank and all of them very responsible--might well have their expertise employed usefully in investigations and inquiries. I hope that my
Column 60right hon. and learned Friend will examine whether it is possible to improve the investigation procedures of the proposed commission. I do not suggest for a moment that journalists are the best statement takers. Judging from the quotations that I have allegedly given to journalists in recent years, I consider them to be the worst statement takers. Comedians could take statements as well as journalists do, but I do not think that anyone is suggesting that investigations should be in the hands of comedians.
I have already alluded to a problem with the procedures of the new appellate body which is not like the Court of Appeal. New evidence may be discovered which is not admissible in law and therefore, under the existing rules, would surely have to be rejected by the Court of Appeal. Everyone may realise that a miscarriage of justice has taken place, but nothing can be done about it because the commission has discovered evidence which is inadmissible in the Court of Appeal to which the matter is referred.
We will be no further advanced in curing miscarriages of justice if that is the end of the road. How will we remedy that problem? I am afraid that there may be no alternative but to admit hearsay or any other kind of inadmissible evidence. In its evidence, the Society of Conservative Lawyers said:
"we do think that certain miscarriages of justice where the wrong person is convicted might be avoided if the defence could in some circumstances rely on `hearsay' evidence."
"So-called `self-serving' or `exculpatory' statements should be admissible to show consistency";
obviously that was at the point of trial. We also suggested: "The defence should be able to adduce `hearsay' if it can satisfy the judge that direct evidence is not available in practice, that the evidence is relevant, that it comes from an apparently reliable source, and that justice requires its admission".
I think--the draft article by Professor Sir John Smith suggests this also-- that we should grasp the nettle.
The object of this exercise is to abolish miscarriages of justice as far as we can--I add that qualification because we can never exclude the possibility that people will deliberately lie in circumstances when those lies cannot be detected, or that eye witnesses may make honest mistakes but no evidence exists to the contrary. If we are to deal effectively with miscarriages of justice, we must consider the need for some far-reaching changes in the rules of evidence.
It is not enough to state in the Bill that the test is whether or not the verdict is "unsafe" and expect the courts to interpret it anew. We would spend all of our time in the Court of Appeal arguing what "unsafe" meant. It is not enough simply to set up a commission without considering what kind of evidence it might discover which would then come up against the buffers of existing rules of law and practice in our courts.