House of Commons Hansard Debates for 6 Mar 1995

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confidence may be greater than the Home Office is willing to spend at the moment, but the price of a lack of confidence will, in my view, be much greater.

I welcome the Bill. I look forward to it being strengthened in Committee, and to a reduction in the number of miscarriages that we see in our criminal justice system in Britain.

9.4 pm

Mr. Alun Michael (Cardiff, South and Penarth): It is recorded somewhere in the annals of Welsh mythology that, when my hon. Friend the Member for Gower (Mr. Wardell) opened an Adjournment debate at 3 am, he sent his mother a tape of his speech. The following week, he heard her telling her neighbour that when her son, Gareth, spoke in the House, "You could hear a pin drop--in contrast to the noise, commotion and fury when Neil Kinnock or that Mrs. Thatcher tried to make themselves heard." The fact that there is no noise in the background to this debate may reflect a lack of controversy, but the fact that it has been a quiet and serious debate should not be allowed to diminish interest in this important Bill.

I must tell my hon. Friend the Member for Warwickshire, North (Mr. O'Brien) that sound, fury and disagreement on principle is not enough to arouse interest in the press and the media. I voted for the television cameras to come into the House, in the hope that they would help to inform the public of the serious issues that we debate. Their failure to record a single sitting of the Committee that considered either the Criminal Justice Bill or the Police and Magistrates Courts Bill in the previous Session was a disgrace. It is neither controversy nor quiet debate that seems to draw proper attention to some of the most important issues that we discuss in the House. It was appropriate that my hon. Friend's serious contribution, in which he raised a number of issues that must be debated in Committee, should close what has been such a good debate. Like my hon. Friend the Member for Blackburn (Mr. Straw), I welcome the Bill. I welcome it with relief, because its gestation period has been equivalent to that of an elephant. It has taken a long time for the Bill to reach the Floor of the House. It will require hard work in Committee to ensure that the right Bill emerges. Concern was expressed by a variety of hon. Members on a number of points of detail, and a number of those points remain unclear.

I assure Ministers that we will bring a constructive approach to the discussions in Committee, with a view to returning to the Floor of the House a Bill to which we can give whole-hearted support and which will command the whole-hearted support of both sides of the House. It sounds rather boring, but that is our objective. If Ministers will share in the search for consensus, we will certainly play our part.

I am concerned about the availability of resources. I hope that the Minister will come prepared for a serious discussion on that issue in Committee, or, perhaps, reassure us this evening if he can. The hon. Member for Sutton and Cheam (Lady Olga Maitland) dismissed that concern with her customary cavalier attitude. The trouble is that there appears to be an intention to depend on the resources of the police. If demands on the police are considerable, it could bleed the local police--in different parts of the country at different times--of the staff that are necessary to undertake their normal duties.

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There is some concern that those resources have been

underestimated. If that is balanced by drawing off local police, which would result in a decline in the availability of senior officers at local level, that will be sad. Local communities should not pay the price for us getting our sums wrong at this stage. I believe that that will be an important discussion for us to have in Committee.

I must contrast the confused contribution of the hon. Member for Sutton and Cheam with the constructive approach adopted by Conservative and Opposition Members and by the Home Secretary and the shadow Home Secretary. By claiming the profession of journalist, she made the case against employing journalists in a way that was as devastating as it was unconscious and unintended.

It is in the best interests of the police that any case which may involve bad practice or the misuse of police powers should be objectively investigated, and it is also in the best interests of the police that that investigation should be as searching as it is fair. I think that that is the general belief of the police themselves. It is in the interests of the police, the public and those who may be the subject of miscarriages that there should be confidence on all sides in the body that we have set out to establish through the Bill.

It would have done the hon. Member for Sutton and Cheam good to listen to the hon. Member for Leicestershire, North-West (Mr. Ashby), who spelled out the precise reasons for rejecting complacency. Given the fragility of the whole system and the fact that our criminal justice system depends on fallible human beings, we would be foolish to put misplaced confidence in the idea that everyone in our prisons deserves to be there. That is not a reason to give up hope or to swing too far in ignoring evidence: it is a real life challenge. The true friends of our criminal justice system are those who love justice first and the system second.

My hon. Friend the Member for Sunderland, South (Mr. Mullin) has been identified by hon. Members in all parts of the House as a friend of justice rather than an old softie. That is absolutely right. I know from my knowledge of my hon. Friend that he is as concerned to see the guilty convicted as to see the innocent cleared. If in the course of pursuing one, we are accused of neglecting the other, we certainly need to consider our balance. My hon. Friend need have no concern in that regard, because he has been tough-minded on both. It is important to get that balance right.

My hon. Friend the Member for Coventry, South-East (Mr. Cunningham) was right to be positive about the body that we are establishing, and right to highlight the delay in setting up such a mechanism. That makes it all the more important to get it right. There are questions to be answered. How will cases come to the attention of the body? Access has been mentioned and is in the Bill via a referral by the Appeal Court, but what about other mechanisms? Will a convicted person who claims that there has been a miscarriage of justice be able to ask directly that the body should investigate the alleged miscarriage? Will referral from hon. Members be acceptable? We are often approached, sometimes inappropriately, but people often feel that as their elected representatives we can put them in touch with the authorities which will look after their interests.

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It is correct that the right of the Home Secretary to refer to the Court of Appeal should be replaced in the course of establishing that body, but what of the Home Secretary's right to appeal to it? Those matters are not set out, but they are important. People's expectations of the body are important and those matters need to be spelled out in the Bill. I hope that the Minister will be able to give some answers in his response to the debate. If he does not, these issues will need to be pursued in Committee.

I pay tribute to all those who have worked so hard to get us to this point. The Bill has not happened by accident, nor has it come from the Home Secretary's goodness of heart. I say that even though I am being nice to him today. It is the result of a great deal of hard work, representations and pressure, and because of the willingness of people such as my hon. Friend the Member for Sunderland, South to take a great deal of stick and criticism in pursuing a cause that they believe to be right. My hon. Friend has been praised by hon. Members in all parts of the House for his objectivity. That probably worries him more than a savage attack by a Minister.

Such praise is right. In a democracy, there is a need for people to stand up for what they believe is right and on behalf of people whom they think need defending, even when that is unpopular. That stance has been thoroughly vindicated. I am sure that my hon. Friend must feel some satisfaction from seeing the Bill in the House, even though, characteristically and rightly, he expresses reservations about the Bill as it stands. He shares with others the concern that the Bill needs to be improved.

My hon. Friend the Member for Bristol, East (Ms Corston) introduced a detailed Bill, which was borrowed for amendments during the Committee stage of the Criminal Justice Bill--so her Bill was debated in this place in detail, as well as in general. With other colleagues--in particular, a former Member of the House, Lord Archer of Sandwell--we have tabled amendments on a series of Criminal Justice Bills, with the aim of expediting the establishment of the body that we are discussing today.

We are left with a big job for the Committee stage. One aspect that we need to consider is the role of the Appeal Court. My hon. Friend the Member for Sunderland, South (Mr. Mullin) referred to concerns about its operation. We want to ensure that difficulties do not remain after the passage of the Bill.

The hon. and learned Member for Burton (Sir I. Lawrence) referred to the need to improve the criminal justice system to avoid miscarriages. I agree. Confidence is all the more fragile as a result of some of the more ill- judged elements of the Criminal Justice Act 1994, when the advice of the royal commission was ignored by the Home Secretary when he brought forward his recommendations. It makes it all the more important that protection should be put in place. As a number of hon. Members have said, there is a need for a balance between convicting the guilty and protecting the innocent. No one can be content that our criminal justice system does either to perfection. The tendency to fragmentation is worrying and we need to get the different parts working in complementary fashion. It must be objectively seen to be clear who does what, but the different bits also need to complement each other.

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I accept the general dependence, for example, on serving police officers as investigators. That proposal is not in dispute. However, what is in dispute is whether that dependence should be absolute and also the nature of the supervision of those who undertake the investigation.

The hon. Member for Uxbridge (Mr. Shersby) rightly said that immense sums of money are spent on legal aid and on the criminal justice system. In fact, there are three aspects on which we spend too little--victims, prevention of crime and reoffending, and tackling injustice, which is the subject of our debate today. We need to redress that balance within the system.

The hon. Member for Harborough (Mr. Garnier), depending heavily on the excellent Library brief--paying something of a tribute to the work of the House of Commons Library--

Mr. Garnier: It is kind of the hon. Gentleman to allow me to interrupt him. I did not actually refer to the Library brief at all.

Mr. Michael: It is interesting that there seemed to be a certain similarity between the brief and what the hon. Gentleman said. I took it as a compliment to the Library system. He made a curious reference to legislation by postcard. It is important that we do not allow that reference simply to pass, because the right to petition predates Parliament and the use of that particular form is one that should not be criticised as much as it has been in some quarters during recent times.

The hon. Gentleman also referred to his hope that the latest development will be the last for some time. I hope that he is right, but it depends on our work in Committee--where, I hope, we will avoid the party political knockabout and instead seek ways to improve the Bill so that we can avoid the dangers highlighted during the debate. The right hon. Member for Mole Valley (Mr. Baker) said that investigating officers should be from a different force from that which originally investigated the case. Underlying that point is the important fact that justice must not only be done, but must be seen to be done. Therefore, the separation of responsibilities is important.

That is nowhere more important than in relation to the delicate issue of miscarriage of justice. We need to hear from Ministers how the investigation will be overseen, who will have the duty to set out the scope of police inquiries, including the number and rank of officers to be involved, the time scale and the likely cost. Who will direct and supervise all inquiries and certify that they have been satisfactorily completed? Is that a responsibility of the commission? It is not clear in the Bill, where responsibility appears to be split between the commission and the chief constable whose staff are seconded to undertake any investigation.

There are six aspects to the issue of objectivity and to ensuring that the commission is seen to be able to carry out its functions in a way that will inspire confidence on all sides. One is the matter of access to the commission.

Mr. Michael O'Brien--not the hon. Member, I hasten to add, but a constituent of mine--should be as familiar to hon. Members as my hon. Friend the Member for Warwickshire, North. He has written to every one of them at least once, and to all Members of the House of Lords

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at least as frequently. He has put across to hon. Members his belief that he is the victim of a miscarriage of justice. Will the commission be able to scrutinise that sort of case, where a difficulty exists in finding new evidence? It is important that such questions and the question of time limits that could place an artificial limit on investigations should be discussed in detail in Committee.

The second aspect of the independence of the commission is the mode of appointment. Obviously, it is a positive step to advertise to raise interest in being appointed to the commission, but it is also important that the commission should be seen to be appointed through an objective process and, therefore, to be balanced and to inspire confidence. That point has been made by hon. Members on both sides of the House, and I hope that the Government will give it some thought. The Minister may be able to be positive about that point in Committee.

The third aspect is the commission's scope to investigate miscarriages of justice. The definition of the commission's responsibilities should be wide enough to allow for difficult cases. The threshold for investigation and for referral is an important point for debate. It was raised by the hon. and learned Member for Burton (Sir I. Lawrence), as well as by my hon. Friend the Member for Walthamstow (Mr. Gerrard).

Difficulties exist in other parts of the criminal justice system. The Crown Prosecution Service appears to be constrained from prosecuting in cases where it is generally felt that prosecution should follow. Such a constraint occurs in what is described as the public interest, but it may have more to do with a general financial constraint than with the specific case.

The Police Complaints Authority has been undermined by dissatisfaction about the way in which complaints are investigated. Part of that dissatisfaction involves worry about the investigation at the early stage-- the investigation in the police force, where informal resolution too often appears. If there is genuine informal resolution, that is fine, but I and my hon. Friends are aware of cases where everyone believes that a case has been resolved informally except the person who has made the complaint, to whom it comes as a complete shock.

The pressure from the inspectorate for an increased percentage of informal resolutions is being exerted in the wrong direction. Such dissatisfaction has been caused in relation to the South Wales police, although I believe that that has been accepted, and that the matter is in the process of being set right. It is even more important that there should be confidence that the body that we are seeking to establish has the capacity to set matters right.

The threshold referred to by the hon. Member for Upper Bann (Mr. Trimble) is an important issue, which needs to be debated fully in Committee. We should discuss whether there should be a limitation on issues not already raised. I thoroughly agreed with the hon. Gentleman's point. We should not play a game. We should not think that anything is okay as long as it is being done by the rules. We need to ensure that the commission is able to deal with real miscarriages rather than be too hidebound.

The fourth point, therefore, is the test. Is "unsafe" too high a test to set? Should we accept the royal commission's recommendation that the test should be

"is or may be unsafe"?

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I was not convinced by the Home Secretary's suggestion, in response to my hon. Friend the Member for Blackburn, that the choice of the higher threshold was a result of consultations.

The point is that, where there is a lurking doubt about a prosecution--a lurking doubt about a decision of the courts--there should be a capacity to investigate and to ensure that certainty is achieved, as far as is humanly possible. If we set the threshold too high, far too many cases in which there is no confidence in the outcome reached by the courts will not be capable of investigation by the commission. That will undermine confidence in the commission and will fatally undermine the commission in doing the job that the Bill sets it up to do.

Tied with that point is the oversight of investigators and the capacity of the commission to have its own staff who can oversee the investigations. That leads me to the fifth point, which is the accountability of the investigating officer. It is clear that the investigating officer is to be appointed by his or her own chief constable. It is explicit in the Bill that the report will be made both to the commission and to the chief constable. Is that sensible? Is it properly balanced? Is there not a split of responsibilities and a split of supervision as a result of the mechanism contained in the Bill?

The accountability of the police, following the centralising influence of the Police and Magistrates Courts Act 1994, should not be totally disregarded in emphasising the importance of the investigations being objective and accountable to the independent and responsible authority. The responsibility of seconded officers to the commission is therefore important, and it underlines the importance of the commission having the capacity for oversight.

That brings me to the sixth point, which is the right of the commission to have an independent capacity to investigate. For the commission to be totally dependent on the police and for it to be ruled out from any approach other than police investigation would surely be too limiting. It may only be in a minority of cases that anything else is required, but that minority of cases should be catered for in the Bill.

We should have a body that is capable, on occasions, of having an innovative approach to getting at the truth. Reference has been made to the Bridgewater case and a number of cases in which repeated investigations have not cleared up the remaining doubt about the safety of prosecution.

We should not look just at what the courts have examined already; this is not just about process. Although the involvement of the police is important, we should not disregard the pressures on the police, a point made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) earlier. The police have limited cash, which is being limited even more. They have been slimmed down, especially in respect of supervisory ranks. In some places there are one or two superintendents where previously there were five officers at superintendent or chief superintendent level. That reduces considerably the availability of people to be seconded to undertake a major investigation for an extended period.

I have concerns in my own area, where, for example, the Llanishen and Rhymney divisions have been merged, which is a mistake because it makes the division too big. One can imagine the position if the officer who had the task of supervising the whole area was taken off for a

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time to conduct an investigation. Those are the very officers who will be needed for the oversight of investigations.

Questions remain to be discussed in Committee. There are, for example, the concerns of the hon. Member for Upper Bann about the special needs of Northern Ireland and about balancing the knowledge of law in the communities there with the requirements of objectivity and independent scrutiny. There are questions over the retention of evidence by the defence as well as the prosecution, and debate about who does what between the Police Complaints Authority and the commission. It is clear that some miscarriages have arisen from investigation by the Police Complaints Authority of allegations of misconduct by the police. There is a need for some overlap between the authority and the commission, but I would not want it to be drawn so tightly that the lines of demarcation were so clear that people or cases could fall between them. What is expected of those two bodies should be clarified.

The Home Secretary referred to identifying possible miscarriages as being a responsibility of the commission. Identifying is an interesting word to use, when "investigating" is the one that springs more readily to the lips. Perhaps that usage will be explained to us as the debate on the Bill continues.

The need for the commission to be visibly independent of the Government and the courts is undoubted and agreed by hon. Members on both sides of the House. The need for that commission to be independent also of the police or other authorities is equally important in those cases where that is an issue. I hope that that need, together with the question of the level of the threshold, will be subject to serious debate in Committee.

I agree with the Home Secretary that we need a simple and understandable test. That test, however, should be the right one. A higher threshold than necessary may unintentionally obstruct the search for justice and undermine confidence. That would be a grave mistake.

My hon. Friend the Member for Blackburn said that the Bill should foster the confidence of the public in the courts, the police and the system that regulates both. We need a Bill that covers all eventualities and allows confidence to be expressed in all aspects of the criminal justice system. We cannot be confident that nothing will ever go wrong again, but confident that a proper body exists to deal with matters when they go wrong.

The hon. Member for City of Chester (Mr. Brandreth), the hopeful radical, talked about the responsibility of being a member of a jury. He is quite right about that. I recall sitting in court for the first time as a magistrate, having sat in the back of the court on numerous occasions to observe the proceedings. That weight of responsibility is extremely heavy.

What came into my mind during my early days on the bench was the enormity of the responsibility when deciding between two cases; deciding between right and wrong and on guilt and innocence. That responsibility should not be underestimated, even when, after a long period in the courts, it is possible for people to become numbed, and therefore perhaps sometimes unable to distinguish properly the acute necessity of getting it right. That is why I agree with the hon. Gentleman about the importance of the process of appointment of the chairman and members of the commission.

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I hope that the Minister will give a positive response to many of the serious concerns that have been expressed, especially as they have been put forward constructively by both Conservative and Opposition Members. There is a welcome consensus on the principle of the Bill. It is welcome that we have reached that point at least in political debate on miscarriages of justice. I hope that by the end of the Report stage, if not the Committee stage, we will have equal consensus on the detail of the Bill.

If we can achieve that, the Government and Opposition will have cause for pride, but if we fail, it will not be for the lack of trying on the part of Opposition Members. I hope that the Government will not spoil this ship for a ha'p'orth of tar. We have waited a long time for the Bill; let us not miss the opportunity to get it right.

9.33 pm

The Minister of State, Home Office (Mr. David Maclean): I thought that it would have been obvious to the hon. Member for Cardiff, South and Penarth (Mr. Michael) why so many colleagues, myself in particular, were so quiet in the debate. It is because I am still rather hoarse from cheering Gavin Hastings on Saturday. That is the only partisan note that I wish to make to the hon. Gentleman. [Interruption.] I am very much aware of possible Welsh supporters behind me and in a superior position.

We have had a serious discussion on the Bill tonight, and hon Members have raised a number of intriguing points. The debate has been cross-party, and I want to respond to a number of the points that have been raised.

As has been evident from the contributions to this evening's debate, the Criminal Appeal Bill goes to the heart of the criminal justice process, its effectiveness and integrity, and the checks and balances that any criminal justice system must provide in seeking to bring the guilty to justice while safeguarding the innocent from wrongful conviction. The Bill is firmly based on the recommendations of the Royal Commission on criminal justice, and on the detailed consultation that the Government undertook immediately after the royal commission reported. The welcome that the Bill received today from both sides of the House confirms that we can have confidence in it as a sound foundation for our criminal appeals system into the next century.

The independence of the criminal cases review commission which the Bill will create was properly emphasised today. The Bill addresses the matter of independence very carefully, while giving equal care to defining the proper relationship between the commission and other parts of the criminal justice system, as well as defining how the commission is to be accountable to Parliament and the public. The commission will be independent of Government. My right hon. and learned Friends will relinquish their responsibilities for deciding whether to refer cases to the courts, and those decisions will in future be entirely for the commission. My right hon. and learned Friends will, however, retain their role in relation to recommendations about the exercise of the royal prerogative of mercy. Those powers will still be needed in very exceptional cases which, for whatever reason, the commission and the courts cannot deal with in the normal way of things. The

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prerogative will still have a necessary function in relation to matters which have nothing to do with whether a conviction or sentence was right or wrong: for example, where mercy is justified for exceptional compassionate reasons. Such uses of the prerogative are, however, rare.

The commission's independence will be further guaranteed by the quality of its members and the range of skills and experience that they bring to the task. Once again, the Government's thinking follows closely that of the royal commission. Like the royal commission, we consider that the new body will benefit from having both legally qualified and non-legal members. We also consider that it should have people with a broad knowledge and experience of the criminal justice system, in addition to members from outside that system who will bring entirely fresh perspectives to the work. Thus the new commission will have strength in its diversity.

As is often said, any organisation is only as good as the people in it. Accordingly, we want the best and most suitable people to be members of the commission and comprise its staff. The posts of chairman and members of the commission will be advertised in the press. The job descriptions for those posts will be clearly set out to potential applicants. I do not yet know which newspapers the advertisements will be placed in, but the posts will be widely advertised. I say to the hon. Member for Sunderland, South (Mr. Mullin) that the advertisements will not be exclusively in The Sun ; nor will they be exclusively in The Guardian , which may reassure my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland).

Mr. Ashby: If my hon. Friend believes, as he seems to imply, that such independent people are better able to do the job that his Department was doing formerly, might not the same view prevail about mandatory life sentences?

Mr. Maclean: No, the same view would not prevail, and my hon. Friend will not take me down that route tonight.

Candidates applying for the posts will be subject to an appropriate selection procedure to draw up a list of candidates from which the Prime Minister will make his recommendations to Her Majesty the Queen. I reassure my hon. Friend the Member for Upper Bann (Mr. Trimble) that at least one member of the commission will have knowledge and experience of the criminal justice system in Northern Ireland so that the commission is suitably qualified to consider cases arising in that jurisdiction. Of course, the commission will also need some staff with experience of the Northern Ireland legal system. I expect everyone to be appointed on merit and not for any other reason.

The commission will also be independent of the courts. It will not be a court, nor will it be part of the courts structure. There will be no right of appeal as such from the commission's decisions, but those decisions will be subject to the possibility of judicial review, as is proper in cases where liberty and livelihood may be at stake. But the important point is that the commission will be separate from the courts system, with a different composition and

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different procedures. Having established its independence, it is important to get the relationship between the commission and the courts absolutely right.

Mr. Mullin: Does the Minister recall that the royal commission recommended that the chairman should not be a judge, past or present? Can the Minister clarify whether his Department accepted that recommendation?

Mr. Maclean: I was going to come to that point later, but the answer is that we have not yet come to a firm conclusion. We are mindful of the views of the royal commission and will take them carefully into account, but we have not yet made a final decision on the background skills and experience of the commission's chairman. The final decision in any case on whether or not a conviction or sentence should stand will remain with the courts. The commission's function will be to decide whether a case should go to the courts for that decision to be taken. It is clearly of the greatest importance that the commission should not be misinterpreted as being somehow itself a court of appeal acting above, or in parallel with, the courts themselves.

The criteria for references in clause 13 of the Bill have an important part to play in defining that relationship, in a very broad sense, in the legislation. We agree with the royal commission's conclusion that detailed operating criteria are best left to the commission itself. Our own experience tells us that it is impossible to predict all the individual circumstances of the range of cases in which the question of a possible miscarriage of justice may arise. We agree with the royal commission that the statutory criteria should be broad, although here we have departed in one important respect from its recommendation. The royal commission thought that the only ground for referring a case should be a belief on the part of the new body that a miscarriage of justice may have occurred. In our view, it is necessary to go a little further than that. There are in essence three elements to the criteria for the reference of convictions in clause 13. First, there must be some new argument or evidence not previously raised at the trial or on appeal. Secondly, there must be a real possibility that the reference will lead to the conviction being quashed. To the hon. Member for Bristol, East (Ms Corston) I say that the phrase "real possibility" is a wide one--the alternative would be to have no real possibility, which would be extraordinary. That is a wide ground for referral. Thirdly, references may be made only outside the normal appeals process. Similar criteria are to be applied in sentence cases.

The requirement that there be some new element for the court to consider is broadly expressed, but it is of great importance. It defines the relationship between the commission and the courts: the one body referring, the other deciding. Unless there is some new element for it to consider, the Court of Appeal or the Crown court would simply be being asked to consider reversing its own previous decision--the point that I was raising with the hon. Member for Upper Bann (Mr. Trimble). In the absence of anything new, the implication would be that the commission which had referred the case disagreed with the previous finding on appeal. That would place both the commission and the appellate court in a most invidious position. There would also be no real purpose in such a reference, since the appellate courts cannot be expected to alter their previous judgments unless there is some

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substantial new point on which they can focus. For both those reasons, it would be unhelpful if the Bill appeared to leave open the possibility that such referrals could be made, thereby confusing potential applicants as to the nature and scope of the commission's responsibilities. The criteria in clause 13 avoid that pitfall, while enabling the commission to refer every possible sort of case in which the courts might come to a fresh view on a further appeal. The hon. Member for Sunderland, South (Mr. Mullin) asked me about the test for fresh evidence and grounds of appeal. The discussion paper gave a broad welcome to the royal commission's formula of "is or may be" unsafe, because the Government recognise the need to bring clarity and simplification into such matters. However, the royal commission's formula goes wider than the current practice of the Court of Appeal and was, on examination, found to be uncertain in its effect.

The formula in the Bill provides a simple test, which effectively restates the existing practice of the court, as was wisely noted by my hon. Friend the Member for Hertfordshire, North (Mr. Heald), and I think that my hon. and learned Friend the Member for Burton (Sir Ivan Lawrence) concurred. I can assure the House that it does not narrow the grounds for allowing an appeal.

On the test for receiving fresh evidence, the Court of Appeal will receive fresh evidence if it considers that it is capable of belief, rather than, as at present, that it is likely to be credible. That was recommended by the Royal Commission on criminal justice. It provides a lower threshold for the admission of fresh evidence in appeals.

My hon. and learned Friend the Member for Burton made some comments in his speech about the word "unsafe"--or the word "unsatisfactory" in the definition of unsafe. The primary test is whether a conviction is unsafe. It is possible that a material irregularity, such as the fact that the police lied to the jury, will cast such a doubt on the safety of the conviction that it is now unsafe. That will depend on the circumstances of the case. The courts have ruled that there is no real difference between "unsafe" and "unsatisfactory". The Royal Commission agreed with that.

My hon. and learned Friend the Member for Burton also asked about the proviso. The Bill abolishes the existing proviso that the Court of Appeal need not quash a conviction if it believes that no miscarriage of justice has occurred. All would turn on whether a conviction is unsafe. The Lord Chief Justice and members of the senior judiciary have given the test a great deal of thought, and they believe that the new test restates the existing practice of the Court of Appeal.

Clause 4 lowers the threshold for admission of new evidence to some extent, but I do not believe that it would be right to lower it significantly. Other elements of the existing test are important; for example, there must be a reasonable explanation for the failure to adduce evidence at the original trial. Since the Royal Commission reported, the courts have taken a more flexible view of appeals based on flagrant incompetent advocacy, as the case of Clinton showed, but we need to be careful about permitting cases to return to the Court of Appeal simply because the defence have tried one defence and failed and now wish to try a tactical change of defence manoeuvres. I am not aware of the article by Sir John Smith QC to which my hon. and learned Friend the Member for Burton referred, but I look forward to reading it before the Committee meets, if it is possible by that date.

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I shall now discuss the crucial matter of investigations in miscarriage of justice cases, to which the Government have given a great deal of thought, and which was the subject of most comments by most speakers.

Sir Ivan Lawrence: I am sorry to interrupt my hon. Friend's train of thought, but I wish to ask him a question before he does that. Perhaps the most significant and important question that has been asked about the investigation process is what happens if the criminal cases review commission digs up some evidence that is not strictly admissible in court, such as hearsay. Will the Court of Appeal say, "We are sorry, but hearsay and is inadmissible and we shall not take it into account in considering whether there has been a miscarriage of justice"? If my hon. Friend cannot deal with that question straight away, perhaps I might receive a reply in due course.

Mr. Maclean: I am happy to give my hon. and learned Friend a more detailed reply in due course, but that could be one of those cases in which the exercise of the royal prerogative might be appropriate. Other people have commented extensively on the laws of evidence. The laws of evidence are being considered by the Law Commission at present-- [Interruption.] Yes, by the Law Commission. It is therefore appropriate to consider what it has to say about hearsay and all other aspects of the laws of evidence.

Different opinions have been expressed by hon. Members tonight about whether, how, how far and in what way police officers should be involved in those investigations. The Government recognise that that is a crucial aspect, and we have considered it carefully. However, it was not merely our own experience which told us that a great deal would be lost, and that the new procedures would be considerably weakened, if it were not possible for the commission to have access to the experience and expertise of the police.

The royal commission, after all the evidence that it had seen and heard, and after all the consideration given to those matters, concluded that there was no practical alternative to using police forces in those investigations. Moreover, the need for access to police skills and expertise was endorsed by the majority of those who commented on the point in response to the Government's discussion paper. The paper took care to set out a number of different options for the way in which investigations might be carried out by the new independent body.

Hon. Members emphasised the need for independence in those investigations, and they are right to do so. The proposals in the Bill do not say that the commission will simply hand over its inquiries to a police force and then sit back and hope for the best until the relevant force has reported back. Far from it--the commission will have powers to direct and to supervise any investigation. And "supervise" means just that: a member of the commission will be able to take as active a role in overseeing the inquiries as he or she judges necessary or appropriate in the circumstances of the case.

If it is necessary to accompany an investigating officer when he interviews a witness, a member of the commission will be able to do that. If the commission wants to ask specific questions of a witness, it will be able

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to require those questions to be asked. If, for some reason, the commission prefers to speak to a witness directly, or the witness prefers to speak directly to the commission, that may occur at the commission's discretion.

All of that seems to provide the measure of independence that the Government are as anxious as hon. Members to see provided. The expertise provided by police officers and the independent contribution made by the directing and supervising members of the commission will be a powerful combination in getting to the root of often complex cases.

The hon. Member for Blackburn (Mr. Straw) pressed the point about having a corps of investigators in the commission to be used only occasionally. I think that the demand for larger, more complex investigations is likely to fluctuate, and it would be difficult to establish a unit of optimum size. Sometimes the investigators would be under-occupied and on other occasions they would be terribly busy. It would be difficult to get the size of the unit right.

Such a unit would have to be accountable to the exercise of police powers and subject to disciplinary arrangements in respect of its operational duties. Special arrangements would have to be put in place to give the investigators access to training opportunities to keep them in touch and up to date with all elements of police practice, investigative techniques, and so on.

Experience shows that in a significant number of cases the investigation required is very straightforward. It would be far quicker and more cost effective to ask the force concerned to undertake the work. That force often knows the background to the case and where to find the people concerned. We think that it would be less effective to ask a group of officers who are unfamiliar with the case to make the same inquiries.

Another point which I stress to the hon. Member for Upper Bann, which has probably not been picked up, is that the commission's staff will include three or four investigators who will be serving police officers. They will be responsible for directing, planning and supervising the investigations which will be conducted by the external police officers.

Mr. Michael: I am slightly confused by what the Minister has said. Before he gave way, he seemed to be conceding our point that there should be a corps of employees in the commission capable of overseeing the investigations. The general point is surely not that the commission should employ a large number of people, but that there should be a minimum corps to ensure the commission's capacity for independence. Judging from what he has just said, the Minister will surely accept that point.

Mr. Maclean: I am not conceding the hon. Gentleman's point. I think that he recognises what I said a few hours ago to the hon. Member for Upper Bann: we expect the commission's staff to include some serving senior police officers who are able to direct, supervise and control the operations and assess the quality of evidence that the investigating police force has. The prime distinction is that those people will not carry out the investigations themselves. They will not be investigating

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officers conducting investigations around the country; they will be employed by the commission to control and direct other police officers.

Mr. Michael rose --

Mr. Maclean: Perhaps the hon. Gentleman's point can wait until consideration of the Bill in Committee, as I wish to reply to many other points. If there is time at the end of my speech, I will allow the hon. Gentleman to intervene again.

My right hon. Friend the Member for Mole Valley (Mr. Baker)--I will pay a glowing tribute to him later in my speech--agreed that there should not be a separate independent police investigating body. However, he thought that perhaps the investigating officer should always be from another force. That would remove valuable flexibility and would not allow the best use of resources.

In a case in which no question had arisen about the propriety or effectiveness of the original investigation but one or two potential witnesses needed to be found and interviewed, inquiries by the original force are likely to be quicker and less cumbersome than bringing in an officer from an outside force on every occasion. The commission has the power to require an outside force to investigate wherever it judges such action to be necessary. We would like to keep the flexibility in cases-- perhaps the vast bulk of them--where it will be sensible to use the original force.

My right hon. Friend the Member for Mole Valley has more experience than most people have of the difficult and complex issues raised by miscarriage of justice cases, and he has great experience of the hard decisions that have to be taken. I welcomed his eloquent remarks, and was glad to hear him praise the patient, able and conscientious work done over the years. I am delighted that he paid glowing tribute to the C3 division of the Home Office, whose members have been unsung heroes for years, for all their hard background work in dealing with difficult miscarriage of justice cases.

The Bill is of the utmost importance in strengthening the procedures by which potential miscarriages of justice may be swiftly identified and corrected. Like any other system or organisation, the criminal justice system depends on the people who work in it. The processes of investigation, trial and appeal are made up of a complex interaction of human decisions. Like any system that is operated by human beings--as my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) said-- things will sometimes go humanly wrong. The House recognises that the consequences of such mistakes for an innocent person are terrible and profound. Moreover, the conviction of an innocent person means that someone else has escaped punishment--and possibly that a dangerous person may still be at large. Our duty to individual citizens and to the public in general is to ensure that all appropriate safeguards are placed along the way, so that neither mischief nor lack of vigilance prevents the conviction of the guilty and the acquittal of the innocent. I pay tribute again to my right hon. Friend the Member for Mole Valley for establishing the royal commission, and for being the progenitor of the excellent Bill that is before the House.

My hon. Friend the Member for Harborough (Mr. Garnier) and other hon. Members asked about legal aid. Legal aid will continue to be made available through the

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