House of Commons Hansard Debates for 26 Apr 1995

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apparently to lower the high test of "likely to be credible" before fresh evidence is admitted under section 23 of the Criminal Appeal Act 1968 to the lower test of "capable of belief", and thus to allow evidence to be admitted that might be excluded under the existing test. Sir John said in his article, although in much more elegant language, that as "credible" means "believable", according to the Shorter Oxford Dictionary , the distinction intended to be drawn is utter nonsense.

Furthermore, Sir John says that although one can say, if one is the Court of Appeal, that some fresh evidence is "likely to be credible" before one hears it, one cannot say that it is in fact credible until it has been given and cross-examined, which would have to be after the Court of Appeal is expected to make its decision to admit it. That shows that the great academics will go on arguing about any definition that we arrive at in this place to explain further the word "unsafe".

I am caught on the horns of a dilemma on the amendment. Although I understand the point of defining "unsafe", and of making it statutory and, therefore, binding on future courts of appeal, it is obvious that definitions will not be agreed so easily. If the word is defined, I foresee long years of argument in the Court of Appeal. The Society of Conservative Lawyers wanted "lurking doubt" made statutory because the Court of Appeal did not always follow the line laid down in the early cases of Cooper and others on that phrase.

I have no doubt that my hon. Friend the Minister will respond by saying that the Lord Chief Justice is content that "unsafe" would be clear, just and comprehensible, and would enable the Court of Appeal to quash a conviction on both evidential and procedural grounds. I am not sure whether that means that, in certain cases, inadmissible evidence will be allowed to render the verdict unsafe. Apparently, we must await the Law Commission's report on the rules of evidence before that decision is reached.

Of course, a problem exists about allowing the Court of Appeal to admit evidence that is inadmissible at the trial. There is something faintly absurd about allowing evidence to be admitted in one court and not in another. Equally, there is a problem, if one wants to avoid miscarriages of justice, about allowing a person to remain convicted of crime where evidence exists of his innocence that cannot be admitted because it is hearsay, however powerful that evidence may be.

The summary of Sir John's amended article says that

"the problem which will arise if the Criminal Cases Review Commission finds convictions to be unsafe on grounds which are inadmissible in evidence is more serious than has been recognised; and that the only satisfactory way to deal with the matter is to admit at the trial, subject to safeguards, any evidence, the exclusion of which might render a conviction unsafe."

Mr. Donald Anderson: I assume that the hon. and learned Gentleman is aware that the Law Commission is studying that point in relation to the hearsay rule, and hopes to produce its conclusions, I believe, by the summer.

Sir Ivan Lawrence: That is why I said that, apparently, we must wait for that report before the Government are minded to take any further steps.

I am driven reluctantly to conclude that the word "unsafe" undefined is as likely, because of its simplicity, to avoid a miscarriage of justice as any definition that will

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be argued over by academics and judges in the Court of Appeal, indefinitely, at great cost to the criminal justice system. The Select Committee on Home Affairs recently heard evidence from Mr. Justice Brooke, who is the distinguished chairman of the Law Commission. He says that, as an argument for codifying the criminal law, an assessment is needed of the cost of uncertain law. The permanent secretary to the Lord Chancellor's Department told the Home Affairs Select Committee not many minutes ago that he would try to assess the costs to the system of convicting people who are subsequently considered by the Court of Appeal, interpreting the meaning of words, to have been innocent in law and acquitting them--costs that will obviously turn out to be substantial to the system.

The only question in my mind is whether a future Lord Chief Justice, unfettered by a statutory definition, would adopt the same attitude as the present incumbent, who is apparently saying, "Unsafe is okay for us. The Court of Appeal will take into consideration matters of procedure and of evidence, and we need no further definitions." This is probably a case for guidelines. But, whichever way we decide on the amendments, thankfully, there is no prospect of the work of the criminal Bar being concluded. I only hope that the resource pool from which legal aid fees are drawn never dries up. 8.45 pm

Mr. Donald Anderson: I thank the hon. and learned Member for Burton (Sir I. Lawrence) not only for distributing copies of the famous draft article to all relevant hon. Members, which formed the basis for discussions in Committee, but for again acting as the middleman and intermediary between Professor Sir John Smith and the House. It can hardly be satisfactory that we need such a middleman. The Bill is essentially non- partisan and cries out for consensus, and for the House to get it as right as it reasonably can, in the knowledge that such Bills come before the House only once in a generation.

Surely, rather than having an expert middleman like the hon. and learned Gentleman, on reflection this should have been a matter for a Special Standing Committee, which he, as the Chairman of the relevant Select Committee, would have chaired. It is sad that, since the inception of that new Special Standing Committee procedure in 1980, and the first flush of Special Standing Committees in the 1980-81 Session, when three Bills--the Criminal Attempts Bill, the Deep Sea Mining (Temporary Provisions) Bill and Education Bill--were discussed in that way, only three Bills have gone through that procedure. In the past 10 years, only one Bill has gone through it.

Such a procedure was set up precisely for Bills of this sort. We could well have had four such sittings prior to the Standing Committee. We could have called before the Special Standing Committee relevant practitioners and academics of the stature of Sir John Smith. As a result, we would probably have emerged, not with a higher standard of confusion about the various formulae that have been adopted but with a much clearer understanding, which would have been more likely to stand the test of time. That said, I believe that an opportunity was missed. I hope that hon. Members will be alert to the existence of the Special Standing Committee procedure and will be more ready to adopt it.

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The amendments seek the objective that we sought in Committee--the definition of "unsafe" or "unsatisfactory". I accept the point that, whatever the phrase used, it is capable of widely varying interpretations depending on the tribunal that considers it. There will be no finality, because the composition of the Court of Appeal may change. Although we are told that the current formulation reflects the practice of the current Court of Appeal, we know that, just as the prevailing climate of the Court of Appeal has altered markedly over the past few years, the position could alter in future. All that the House can do, therefore, modestly recognising that there can be no finality, is to give as strong a signal as possible to the judges about our views.

I hoped that the formulation that came from the royal commission, which was accepted by the Law Society and the Bar Council, would be acceptable. It proved not to be acceptable to the Government, and they may rue that. They have said that there were wide consultations on the matter, but we are rather puzzled about that. The starting point was the royal commission and all the published evidence was in one direction. The Government talk about wide consultation, yet they have come to a view that is contrary to all the known published evidence. On the face of it, that is anti-democratic; it does not enhance the quality of debate. I repeat the point about the case for a Special Standing Committee.

The hon. Member for Upper Bann (Mr. Trimble) has taken the initiative of adopting the suggestion of Professor Sir John Smith. We need inter alia to give a signal and some guidance, especially if we wish to make the test less restrictive than the old test. In the helpful clarification given to the Committee, which is now relevant because of the Pepper v . Hart case, the Minister helpfully said:

"We do not intend the test to result in fewer convictions being overturned than at present, or to narrow the grounds for allowing an appeal . . . I repeat what I said to make it absolutely clear: the intention is to consolidate the existing practice of the Court of Appeal and to provide as simple and clear a test as possible . . . The test that we propose fully allows a conviction to be quashed on a lurking doubt. The appellant does not have to prove that a conviction is unsafe; the court merely has to think that a conviction is unsafe. It would be hard to enact the lurking doubt test more explicitly."--[ Official Report, Standing Committee B , 21 March 1995; c. 25.] Those remarks will be relevant; they will be read and acted on by the Court of Appeal following the Pepper v . Hart principle. If the Government are prepared to agree that the formulation accepts the lurking doubt principle, why do they not say so explicitly? What is the mischief in accepting an amendment that would put the matter clearly in statute?

Our judgment is that we need a clearer definition for the formula. It may well be that the formula set out by Professor Sir John Smith is not wholly adequate. I hope, however, that the Government will consider the matter and come forward with a considered view. I hope that the current test of "unsafe", which is not defined and which is certainly not approved by all those whose evidence we have read, will be seen by the Minister to be insufficient. We need to give a clearer signal. We would certainly be ready to support the formulation of Professor Sir John Smith, as set out in the amendment.

Mr. Nicholas Baker: Although I cannot accept everything that the hon. Member for Swansea, East (Mr. Anderson) has said, I take his point about consensus. I do not think that, except in a very technical sense, this is a matter for a Special Standing Committee. The hon.

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Gentleman is, of course, right in saying that we are giving our view to the judges. I am glad that he read out my own words which I cannot oppose. They and all our words will be read and used. We had consultation, about which the hon. Member for Swansea, East asked. It was not, however, the case that everyone came to the same view. We came to the view that it was right to follow the royal commission in replacing the current three overlapping grounds of appeal with a single broad ground of appeal. The amendment would replace that single ground with two grounds. The hon. Member for Upper Bann (Mr. Trimble) has most helpfully and usefully tabled the amendment, but I see difficulties with the definition. It is possible that some of the words are restrictive. The words "a reasonable jury" invite difficulties which throw me back, as we were thrown back following the earlier consultation, on the rightness of having a single test.

In a brilliant speech, my hon. and learned Friend the Member for Burton (Sir I. Lawrence) has explained to us, using all his background, how academic views can change and how the discussion will go on. He raised the point about inadmissible evidence. We felt that it was necessary to preserve the option of a pardon in cases that could not be considered because of inadmissible evidence. My hon. and learned Friend is right to say that we shall wait for and carefully look at the Law Commission's report.

I come back to the approval given by the Lord Chief Justice, which I mentioned in Committee, for one test--the test of "unsafe". It is clear, just and comprehensible. My hon. and learned Friend the Member for Burton left out the next words, which will appeal to the hon. Member for Islington, North (Mr. Corbyn) as they appeal to me. The Lord Chief Justice added the words "to the ordinary citizen." If we want the system to be transparent and if we want everyone to feel that the commission is available to them, we want, as far as possible, language that the ordinary citizen can understand. I believe that the test will stand. It will, of course, depend on the judges' interpretation. It is a broad definition and I believe that we are right to stick to one test. For those reasons, I cannot accept the amendments.

Mr. Trimble: I very much regret the line that the Minister has taken. To some extent, he misunderstands the position. We do not seek through the amendments to change the test; the test will be set out as "unsafe". We do not propose to alter the single ground--whether the court thinks that the conviction is "unsafe". The amendments are an attempt to spell out in a little way the meaning of "unsafe" and to suggest the broad range of things that can go to make up the definition of "unsafe".

The hon. and learned Member for Burton (Sir I. Lawrence) referred to the possibility that people will argue as to what the definition of the clause and the terms in it mean and how academics may still argue about things and change their views from time to time. Well, judges may do exactly that as well.

For many years, there have been grounds on which the Court of Appeal could overturn convictions and we have seen how the approach of the Court of Appeal has varied. We are delighted to see how in recent years the approach of the Court of Appeal in England has been broader. In Committee, the Minister said that the single word "unsafe"

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was intended to consolidate that approach by the Court of Appeal, by which I take it that he is referring to the recent, more liberal interpretation by the Court of Appeal in England. That shows how there has been a difference in approach.

The definition is to enable us to find a way in which to signal clearly to the judges--not only to the present Lord Chief Justice, who is apparently ready to take a good, broad, liberal view, but to all the judges, all the future judges and all the judges in Northern Ireland as well as those in England--that we want to underwrite and clarify the new, broader approach developed in some recent cases by the Court of Appeal.

I agree with the points made by the hon. and learned Member for Burton about inadmissible evidence. That issue must be tackled. I do not see that it is relevant to these amendments or would be a ground for turning them down. None the less, although I am not especially happy with the line that the Minister has taken--I do not think that it is particularly coherent--I do not wish to delay the proceedings. I am sure that the matter will be considered again in another place. I trust that, by then, the Government will have a slightly broader and more liberal approach. In the light of that and with that hope, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8

The Commission

9 pm

Mr. Nicholas Baker: I beg to move amendment No. 30, in page 7, line 33, leave out `(which for this purpose' and insert

`and of them at least one shall be a person who appears to him to have knowledge or experience of any aspect of the criminal justice system in Northern Ireland; and for the purposes of this subsection the criminal justice system'.

Mr. Deputy Speaker (Mr. Michael Morris): With this, it will be convenient to discuss also amendment No. 20, in page 7, line 35, at end insert--

`(6A) At least one of the members appointed under subsection (6) above shall be a person who appears to the prime Minister to have sufficient knowledge or experience of the criminal justice system in Northern Ireland.'.

Mr. Baker: During our discussions in Committee on qualification for membership of the commission, I agreed to look further at whether the Bill could be amended to provide for one member of the commission to have knowledge and experience of the criminal justice system in Northern Ireland. As hon. Members know, it has always been our intention that the commission should include at least one member with just such experience and we see merit in making that clear in the Bill, not least in the light of the discussions initiated by the hon. Member for Upper Bann (Mr. Trimble). Amendment No. 30 is the result of our deliberations on how best to do that and I commend it to the House.

Mr. Trimble: I rise simply to thank the Minister on this occasion for accepting an amendment which I tabled in Committee. I am very glad that he has had the good sense to accept what I said. I simply regret yet again that he did not have the good sense to accept what I said a few moments ago.

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Amendment agreed to.

Clause 13

General Provisions About References

Mr. Michael: I beg to move amendment No. 23, in page 10, line 34, leave out from first `appeal' to `against'.

Mr. Deputy Speaker: With this, it will be convenient to discuss also amendment No. 26, in page 10, line 40, leave out from `appeal' to `against' in line 41.

Mr. Michael: We had quite a discussion in Committee about the limitations in clause 13 on the reference of matters to the commission. The Bill as it stands does not change the present situation--that fresh evidence is needed before the Court of Appeal can consider a further appeal in a case of alleged miscarriage of justice. The clause was changed in Committee. It was amended quite considerably, in fact, but it was not amended in the way in which the Opposition recommended. Indeed, we believe that the amendments resulted in a restriction which is far too tight.

As I said, there is a case for arguing, as the Bill now provides, that evidence which has been considered by a court should not be sufficient for the reopening of a case. There is a case to be made for perhaps allowing the court a little discretion where the commission wishes to bring matters to the court, but that is not in dispute today. We seek to remove the words from clause 13 which mean that matters which have been raised on application for leave to appeal should be sufficient to rule out further consideration. Perhaps I should express that again; it is not a simple point. The clause as redrafted in Committee is so tight that, if an issue has been raised or evidence has been brought forward during an unsuccessful application for leave to appeal, it cannot be used in arguing the case for investigation by the commission and subsequent appeal by the Court of Appeal. That seems too tight and restrictive. Therefore, it seems sensible to remove those words, which is precisely what our amendments do.

In clause 13, line 34, we would leave out the words that effectively mean that evidence has been raised

"on any appeal on application for leave to appeal against, the conviction, verdict or finding."

It is not a vast widening of the powers of the courts to consider fresh matters where the commission considers that they should be so considered, but it would avoid a restriction which may in the fullness of time be seen to be unnecessarily tight and to prevent reference to the Court of Appeal and consideration by the Court of Appeal of cases where there is manifestly real concern that a miscarriage of justice has occurred.

In view of the importance of restoring confidence in the court system and in the criminal justice system, we think that clause 13 constitutes one step too far, one restriction too tight, and that the Minister would be well advised to reconsider the amendments which were made in Committee and to allow the simple and modest change sought in amendments Nos. 23 and 26.

Mr. Nicholas Baker: Clause 13 provides that there should be some new element for the courts to consider before a referral of a conviction, verdict, finding or

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sentence may be made by the commission. The hon. Member for Cardiff, South and Penarth (Mr. Michael) said that that makes the criteria within which the commission must operate narrow and restrictive. I am afraid that I cannot accept that, and I reject it.

The criteria provided in the Bill are wide and sensible. They enable the boundaries between the commission's functions and those of the courts to be clearly defined. Indeed, we believe that the criteria as drafted are broad enough to allow the commission to refer any conviction, verdict or finding where there is new evidence or new argument in relation to any evidence which may have already been raised which is of sufficient weight, bearing in mind the context of the case as a whole, to give rise to a real possibility of the appeal being allowed.

The amendments seek to exclude, from the definition of matters already raised within the terms of clause 13, any matters raised only in an application for leave to appeal. We do not think that that would be right. If the matters raised as grounds for appeal are rejected by the single judge, the applicant can renew his application to a full court. If they are then rejected by the full court, what useful purpose would be served by the commission's referring the case to a court on those same grounds--unless there were some new evidence or argument for the court to consider?

Were some new evidence or argument to come to light, and were the commission to consider that the case met the criteria for referral, it could be referred anyway, using the criteria that we have provided. For those reasons, I cannot support the amendments.

Mr. Michael: The Minister has misunderstood the whole position, and has taken an excessively legalistic approach to a commonsense amendment. He said that there must be some new element for the court to consider. In other words, if the courts have considered something once, that is not new. But our amendments do not contradict that idea. We say that, although an element is not new if it has been considered by a court, it may be new if it has been considered only during the course of an application for leave to appeal.

The Government's approach is unduly restrictive, and the Minister's analysis of the position is wrong, as is his response to this brief debate. He should think again, because I have no doubt that the Government will be invited to think again when the clause is debated in another place. Between now and then, the Minister would be well advised to consider the points that I have made, as well as what was said by several Members in Committee in a rather wider-ranging debate on how closely it is appropriate to restrict the commission. Amendment negatived.

Clause 15

Assistance in connection with prerogative of mercy

Amendment made: No. 31, in page 12, line 38, at end insert-- `(2) Where in any case the Commission are of the opinion that the Secretary of State should consider whether to recommend the exercise of Her Majesty's prerogative of mercy in relation to the case they shall give him the reasons for their opinion.'.-- [Mr. Maclean.]

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Clause 16

Power to obtain documents etc

Amendments made: No. 32, in page 12, line 44, leave out `The Commission may, where it is reasonable to do so,'

and insert

`Where it is reasonable to do so, the Commission may'.

No. 33, in page 13, line 5, at end insert

`and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission.'.-- [Mr. Maclean.]

Clause 19

Inquiries by investigating officer

Amendments made: No. 34, in page 15, line 19, leave out from `may' to end of line 21 and insert

`take any steps which they consider appropriate for supervising the undertaking of inquiries by an investigating officer.'. No. 35, in page 15, line 21, at end insert--

`(4A) The Commission may at any time direct that a person appointed as the investigating officer in relation to a case shall cease to act as such; but the making of such a direction shall not prevent the Commission from imposing a requirement under section 18 to appoint another investigating officer in relation to the case.'. No. 36, in page 15, line 27, at end add- -

`(6) When a person appointed as the investigating officer in relation to a case submits to the Commission a report of his findings he shall also submit to them any statements and opinions obtained, and any reports commissioned, in connection with the inquiries which he was directed to undertake in relation to the case.'.-- [Mr. Maclean.]

Mr. Michael: I beg to move amendment No. 5, in page 20, line 10, after `appoint', insert `subject to subsection 1A'.

Mr. Deputy Speaker: With this, it will be convenient to discuss also the following amendments: No. 6, in page 20, line 11, at end add--

`(1A) The powers of the Commission in sections 9 to 13 of this Act to investigate any sentence given by a Court shall not come into force until a draft regulation setting out a timetable for their implementation has been approved by a resolution of both Houses of Parliament; and no such draft regulation shall be laid before either House of Parliament until at least twelve months after the Commission has been established.'.

No. 40, in page 20, line 11, at end add--

`(1B) Any power in this section of this Act to make regulations or orders shall be exercisable by statutory instrument.'.

No. 39, in page 20, line 11, at end add--

`(1C) Until such time as the powers of the Commission referred to in subsection (1A) above have come into force, transitional arrangements shall operate as laid out in subsection (1D) below.'. No. 41, in page 20, line 11, at end add--

`(1D) In section 11 of the Criminal Appeal Act 1968 (supplementary provisions as to appeals against sentence) after subsection (1A) there shall be inserted the following subsection--

"(1AA) The Court of Appeal may, if they think it necessary or expedient in the interests of justice, grant leave to appeal against sentence notwithstanding that a previous application to appeal has been determined (either by refusal of leave or after a substantive hearing) in respect of the same sentence.".'.

Mr. Michael: The clauses with which we are dealing give the commission powers to investigate sentences. Everybody who has been involved with the campaigns to establish a body to deal with miscarriages of justice is

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puzzled and bemused by the Government's decision to give such powers to the commission, and subsequently to the courts--but especially to the commission.

In Committee, we received no satisfactory answer as to why the power had been given. When we asked whether such a power would not clog up the whole system, there was no answer to that, either. Anyone who has dealt with any seriousness with the prison system, and has experience of talking to prisoners, knows that there is much resentment among prisoners about sentences, and a great wish to have them changed. Sentences are one of the issues that cause the greatest amount of debate and discussion.

The amendments would provide a cushion, or safety valve, because they would allow the Government to keep in the Bill a provision that we believe is unnecessary and possibly ill advised, but they would also provide for a delay in the implementation of the provision for reconsidering sentences.

During the interim period, it will be possible to see what sort of burden of work is being put on to the commission, and whether it has the capacity to deal with the additional burdens imposed by a provision that was not sought or recommended by the royal commission and has not been mentioned in the general debate on the type of body that should be established to investigate miscarriages of justice. The idea seems to have arisen from a desire to deal with the interests of the Home Office, rather than to fulfil the prime responsibility under the Bill, which is to establish a proper mechanism for dealing with allegations that miscarriages of justice have taken place.

Amendment No. 6 says that the powers that the Government seek, which we suggested in Committee should not be among the provisions of the Bill, should not come into force until draft regulations setting out a timetable for implementation have been approved by a resolution of both Houses of Parliament, and that no such draft regulations should be laid by either House until at least 12 months after the commission has been established.

The point is that, during that 12 months, the commission can become established. It will be for Ministers to assess the work load. If we are wrong and the commission is not overloaded, Ministers will surely go ahead at that stage. If we have been right, Ministers will be able to control the situation. Either way, Ministers would lose nothing by accepting our amendments, and would gain a great deal in terms of flexibility and the capacity to avoid dangers that may arise. 9.15 pm

Amendments Nos. 39 and 41 establish transitional powers, and respond to points made by Ministers during the debate in Committee. They suggested that, if there was a delay in the provision of these powers or if they were not provided at all, there would be an anomaly. So the transitional arrangements which are effectively contained in amendment No. 41 will allow the Court of Appeal, if the court thinks it necessary or expedient in the interests of justice, to grant leave to appeal against sentence, notwithstanding that a previous application to appeal has been determined. So it allows for that arrangement to take place.

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In Committee, we had a comparatively short debate, in which the Minister was not able to set out good reasons for including sentence within the burdens to be placed on the new commission. It is surely a matter of common knowledge that the royal commission concentrated on miscarriages of justice, and that that led the royal commission to recommend the establishment of the body that we are creating in the Bill.

In his response to the Committee debate, the Minister said: "I acknowledge that the royal commission did not recommend that the commission should refer sentences to the courts--in fact, it did not mention the matter."-- [ Official Report, Standing Committee B , 30 March 1995; c.109.]

It did not mention the matter, because it was not a matter of general concern, contention or belief on the part of those who had taken an extended interest in the whole matter.

The power which the Home Secretary has at present to refer sentences to the Court of Appeal can be dealt with in a variety of ways. Those matters are already dealt with. I will not repeat the points that were made in Committee, but there are mechanisms for dealing with those matters. The Court of Appeal has powers. There is no reason to burden the commission, particularly in its early days, when it has a backlog of alleged miscarriages of justice to deal with, before it becomes established as a body with a more predictable work load.

I hope that the Minister will accept the amendments. They do not detract from or diminish the powers contained in the Bill. They provide a cushion, and ensure that those powers are not acted on precipitately or without evidence that the commission will be able to cope with the additional work load involved.

Mr. Maclean: During our debate in Committee, I set out in full the Government's reasons why we thought that the approach taken by the Opposition was misguided. There was a fundamental disagreement between us. The Opposition did not like the arguments that I advanced. I have no new arguments to advance tonight, because the ones that I gave in Committee were sensible and serious, and I will stick to them, but briefly.

The Government gave a good deal of thought to the future arrangements for dealing with wrongful sentences when drawing up their proposals for legislation in this area. One option that we considered was to provide extended rights of appeal to the courts, but we rejected this for several reasons.

First was the need to maintain some finality in criminal proceedings. If we were to provide extended rights of appeal on sentence of the sort that Opposition Members propose, the principle of finality established in the case of Pinfold would be breached, and the courts could well find themselves inundated with unmeritorious applications, with all the consequential delay and disruption which that would cause. Applicants would go on appealing ad nauseam to the courts. That cannot be right.

Secondly, it would be wrong, in our view, to provide extended rights of appeal on sentence while still requiring those alleging wrongful conviction to be referred to the new, more powerful commission before their cases could be reconsidered by the courts. Thirdly, representations on sentence, as on wrongful conviction, often require some investigation. If the courts receive these applications, they will either require

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time-consuming hearings, or the applications will be dismissed on paper, at the risk of important points being missed or discounted. Last but not least, if we were to accede to what the Opposition propose, there would be further scope for confusion, as, in making representations, some applicants raise points on both their conviction and their sentence. The amendments would result in such cases being simultaneously pursued in the Court of Appeal and investigated by the commission.

Although I understand that the Opposition's desire in proposing the amendment is genuine, it is misguided. It ignores the fact that the commission will be an investigative body, resourced and empowered to investigate possible miscarriages of justice. The Government believe that they are the persons best placed to look into possible wrongful sentences and refer them if appropriate.

That is the most sensible and cost-effective solution to the problem of who should deal with these matters following the abolition of the Secretary of State's powers. It simply does not make sense to take away the vast bulk of cases that come before my right hon. and learned Friend on conviction, to set up a powerful new independent commission to deal with them, and then to say, "Never mind, the Secretary of State can be trusted to deal with the handful of cases left on sentencing, and we shall ignore the new commission." It must be sensible to let the commission deal with those cases.

I explained in Committee the size of the work load that we envisage. I have nothing more to add to that. We do not envisage a large work load for those sentence cases. The powers provided in the Bill should be available to the commission from the beginning of its operation, so that it can do the full range of its work as quickly and effectively as possible. I do not propose that the commission be delayed for 12 months before having those powers.

For those reasons--the same as I advanced more fully in Committee--I cannot support the amendments.

Mr. Michael: I am surprised by the Minister's response, because he has had time to reflect on the debate that we had in Committee. One barrister has expressed the concern that the clause gives an applicant the unfettered right to apply to the commission for his sentence to be referred to the Court of Appeal. He said that applicants are not restricted to matters which were known to the sentencing judge, or arguably should have been known then, or to the need to have exhausted the normal routes of appeal to the Court of Appeal.

From his response, the Minister clearly does not understand the Pandora's box that he is opening in giving the body that has been established to deal with allegations of miscarriages of justice, the responsibility to deal with problems and complaints about the weight of sentence. There is no body of existing law to help the commission or the Court of Appeal to assess the reductions that might be appropriate in a variety of circumstances.

The Minister has not said whether it is intended that the commission can refer sentences on the grounds that they are manifestly excessive or would need reviewing in the light of changed circumstances since a sentence was passed, or only on the narrow grounds of wrong facts or misinterpretation of the law at the time of sentencing. If

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it is the latter, would it not be better to signal that in the Bill, to avoid confusion and a rush of unmeritorious applications? The Minister has not taken on board the points that were seriously made by a variety of hon. Members in Committee. It is clear from his response today that he has given the matter no fresh thought. This will be a matter of debate in another place. Yet again, the Government will be well advised to consider carefully the arguments which the Opposition advanced in Committee and to think again. It would be a tragedy if the body established to rescue our criminal justice system from the problems that have arisen due to miscarriages of justice, which is being established to restore confidence in the criminal justice system and provide confidence that miscarriages of justice can and will be dealt with properly, were constrained and overwhelmed with a number of applications on sentence.

The Home Secretary's power to review and refer with regard to sentence has been a relatively little-known power. It will inevitably be used more by the commission than it has by the Home Secretary. I hope that I am wrong, and that the commission will not be burdened as a result of this element in the Bill, but I fear that the Minister is wrong, and that, by his failure even to allow the cushion and protection that we offer in the amendments, he will build up problems for the future.

Amendment negatived.

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