| Previous Section | Home Page |
Column 266
Shaw, Sir Giles (Pudsey)Shephard, Rt Hon Gillian
Shepherd, Colin (Hereford)
Shepherd, Richard (Aldridge)
Sims, Roger
Smith, Sir Dudley (Warwick)
Speed, Sir Keith
Spencer, Sir Derek
Spicer, Sir James (W Dorset)
Spicer, Michael (S Worcs)
Spink, Dr Robert
Spring, Richard
Sproat, Iain
Squire, Robin (Hornchurch)
Stanley, Rt Hon Sir John
Steen, Anthony
Stephen, Michael
Stern, Michael
Streeter, Gary
Sumberg, David
Sweeney, Walter
Sykes, John
Taylor, Ian (Esher)
Taylor, John M (Solihull)
Taylor, Sir Teddy (Southend, E)
Temple-Morris, Peter
Thompson, Sir Donald (C'er V)
Thompson, Patrick (Norwich N)
Thornton, Sir Malcolm
Thurnham, Peter
Townsend, Cyril D (Bexl'yh'th)
Tredinnick, David
Trotter, Neville
Twinn, Dr Ian
Vaughan, Sir Gerard
Viggers, Peter
Walden, George
Walker, Bill (N Tayside)
Waller, Gary
Ward, John
Wardle, Charles (Bexhill)
Waterson, Nigel
Wells, Bowen
Whitney, Ray
Whittingdale, John
Widdecombe, Ann
Wiggin, Sir Jerry
Wilkinson, John
Willetts, David
Winterton, Mrs Ann (Congleton)
Winterton, Nicholas (Macc'f'ld)
Wood, Timothy
Young, Rt Hon Sir George
Tellers for the Noes: Dr. Liam Fox and Mr. Simon Burns.
Column 266
Question accordingly negatived.Clause 35
Supervised attendance orders
Lord James Douglas-Hamilton: I beg to move amendment No. 109, in page 27, line 3, after second `than' insert--
`(i) where the amount of the fine, part or instalment which the offender has failed to pay does not exceed level 1 on the standard scale, 50 hours; and
(ii) in any other case,'.
Column 267
Mr. Deputy Speaker (Mr. Geoffrey Lofthouse): With this, it will be convenient to discuss also Government amendments Nos. 110, 111, 61 and 112.Lord James Douglas-Hamilton: The amendments introduce procedural changes to clause 35.
Amendment No. 112 introduces a right to appeal against the imposition and length of a supervised attendance order where such an order has been made as a disposal at first instance in respect of an offender aged 16 or 17.
Amendment No. 61 will make it clear that the Secretary of State can notify courts that schemes are available only for limited classes of cases.
I undertook to consider an amendment that was tabled by the hon. Member for Dumbarton (Mr. McFall) in Committee. We have further considered the position. We agree that, where an offender who is already in prison or detained for other matters falls to be dealt with by the court for fine default, the imposition of a supervised attendance order for default may not be the best option. Amendments Nos. 110 and 111 give the court discretion in such circumstances. Amendment agreed to .
Amendments made: No. 110, in page 27, line 13, at end insert `and is not serving a sentence of imprisonment'.
No. 111, in page 27, line 31, at end insert--
`( ) In subsection (6), the following definition shall be inserted in the appropriate place in alphabetical order--
"imprisonment" includes detention;".'.
No. 61, in page 27, line 33, at end insert--
`( ) in paragraph 1(1)(a), after the word "persons" there shall be inserted "of a class which includes the offender";'.
No. 112, in page 29, line 3, at end insert--
`( ) For the purposes of any appeal or review, a supervised attendance order made under this section is a sentence.'.-- [Lord James Douglas- Hamilton.]
Clause 42
Leave to appeal
Mr. McFall: I beg to move amendment No. 170, in page 33, line 14, at end insert--
`(1A) In section 228(1) of the 1975 Act there shall be inserted at the end "or any allegation that the conviction was otherwise unsafe.".'.
Mr. Deputy Speaker: With this, it will be convenient to discuss also amendment No. 171, in page 33, line 31, at end insert-- `Provided that, in the case of an allegation under subsection 228(2) above of any miscarriage of justice in the proceedings in which the person was convicted or any miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial, the judge shall grant leave to appeal.'.
Mr. McFall: Amendments Nos. 170 and 171 are concerned with convictions that are considered to be unsafe.
Amendment No. 171 is also concerned with evidence on any issue where it is considered that there was a miscarriage of justice on the basis of the existence and significance of additional evidence that was not heard at
Column 268
the trial and was not available and could not reasonably have been made available at the trial. In that case, the judge, in our submission, shall grant leave to appeal.We have seen that situation in Scotland over the past six months or so, where there has been an unprecedented split between one division of the Court of Criminal Appeal, chaired by Lord Hope, and the other division, presided over by Lord Ross, the Lord Justice-Clerk. That dispute centred on cases in which someone who had been convicted claimed that since his trial credible and reliable new evidence had emerged which cast serious doubt on his guilt. The legislation allows the Appeal Court to hear additional evidence only if that evidence was not available at the trial and could not reasonably have been made available.
Several months ago, Lord Hope, supported by Lords Allanbridge and Brand, decided to allow an appeal in a case despite the fact that the additional evidence was available at the trial. However, that decision was tested by five other Law Lords, including Lords Ross, McCluskey, Morrison, the late Lord Morton and Lord Cowie. They stated that the law was clear and that the other three judges had gone against their own previous decisions in the way in which they had reinterpreted it.
7 pm
The reason for that reinterpretation by Scotland's most senior judge was that he wished to be flexible regarding appeals and the law. That is not to say that other judges did not wish to be flexible. They felt that Parliament had set down the parameters within which they had to operate. However, I think that Lord Hope was considering the situation regarding the environment in which the law operates and wished to place a liberal interpretation on that. I, and I think many others, would agree with him regarding his intentions in that respect.
There is a real and growing disquiet about the Scottish Appeal Court's ability or willingness to consider possible miscarriages of justice. Lawyers and the public are becoming more and more aware of how difficult it is to have any case re-examined in Scotland. I think that it was with that in mind that Lord Hope decided, in his opinion and in that of the other judges, to interpret the law in a more liberal way.
The situation in Scotland is not different from that in England and Wales. It is a myth that the miscarriages of justice discovered in the past few years in England and Wales are unlikely to happen in Scotland because of what is perceived as a superior legal system. The truth is that, in Scotland, we are less likely to face up to the possibility that they may exist.
At present in Scottish gaols, a number of prisoners are robustly proclaiming their innocence. A number of such cases have been taken up by their Members of Parliament. For example, the case of George Beattie has been taken up by his Member of Parliament, my hon. Friend the Member for Clydesdale (Mr. Hood). In addition, there are the cases of Raymond Gilmour from Paisley and the ice cream war prisoners, Thomas Campbell and Joseph Steel--the latter having gone to extraordinary lengths, gluing himself to the fence at Buckingham palace, to proclaim his innocence, and the former, having been on hunger strike, declared, on his return to prison from hospital, that he might go on hunger strike again. The cases of Peter Hurtt and Alex Hall are two further examples.
Column 269
There is a real danger in this situation. Pressure is building up and fuelling the argument for easier referral in cases where there is an alleged miscarriage of justice, notwithstanding the fact that we wish a new body to consider the situation. It is noticeable that the noble Lord Ross, the Lord Justice-Clerk, who ruled against Lord Hope's liberal interpretation of the law, himself in a speech just two years ago, said that there had to be a body to deal with miscarriages of justice in the criminal law system.The situation is crying out for some change. Even in tonight's debate, we could go some way towards reassuring the legal fraternity and the judges in Scotland about Parliament's intentions. When the Criminal Justice (Scotland) Act 1980, and clause 32 in particular, was being debated--now section 228 of the Criminal Procedure (Scotland) Act 1975--there was no perception that future generations would be able to bring Hansard to their aid. But the decision in the other place in Pepper v . Hart--in November 1992, if I remember correctly--has ensured that Hansard will be of great assistance. It is precisely with regard to areas of ambiguity where the intentions of Parliament need to be ascertained that the deliberations in Parliament can be used by those outside to interpret the will of Parliament.
The intention of Parliament with regard to appeals is not very clear. My evidence for that is the Hansard report of 5 June 1980 of the Standing Committee's proceedings on clause 32 of the Criminal Justice (Scotland) Bill. That has now become section 228 of the Criminal Procedure (Scotland) Act 1975. Only eight minutes was allowed in Committee to debate the 17 pages of the appeal procedure. Parliament cannot do adequate justice to such a volume of work in eight minutes. We should be concerned that, with the eight minutes that we spent in 1980 and perhaps eight minutes tonight, we shall have spent only a quarter of an hour on the issue of appeals, yet it is one that is tearing the heart out of the Scottish legal system, with the top judges almost at each other's throats.
Given the judgment in Pepper v . Hart, Parliament's intentions can be made clear tonight. Tonight's debate could have a crucial and immediate effect on the development of law in Scotland. We owe it to the legal system to give the matter more than the eight minutes given to it in 1980. The Minister could bring clarity to the policy decision for a liberal interpretation which Lord Hope and other judges are seeking to develop.
If we had what was considered to be an unsafe conviction and Lord Hope's liberal interpretation was applied and upheld, the case of Elliott, with which the Minister is familiar, would not have overturned the decision in the case of Church. We could do the legal system in Scotland a favour tonight by our deliberations. The Government set up the Sutherland committee to consider the issue of miscarriages of justice and to establish a body to consider them. One of the criteria that it considered was whether the Appeal Court should be able to hear additional evidence that was available at the time of the trial provided that there was a reasonable explanation for the failure to adduce the evidence. If I am correct in my interpretation, the dispute between Lord Hope and his fellow judges centres on the interpretation of the word "reasonable".
Column 270
I favour the view that the Appeal Court should be able to hear additional evidence that was available at the time of the trial, provided that there is a reasonable explanation for the failure to adduce it. The current statutory provisions in respect of additional evidence are contained in section 228 of the Criminal Procedure (Scotland) Act 1975, under which a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice, on the basis of the existence and significance of additional evidence that was not heard at the trial and was not available and could not reasonably have been made available at the trial. Other important statutory provisions in respect of additional evidence are sections 252 and 253 of the Criminal Procedure (Scotland) Act 1975. In particular, section 252(c) states:"Without prejudice to any existing power of the High Court that court may for the purposes of an appeal under section 228(1) . . . (c) take account of any circumstances relevant to the case which were not before the trial judge."
A number of observations could be made about section 228(2), but, for the purposes of this debate, it is appropriate to concentrate on the words in the statute that relate to the non-availability limit on the introduction of fresh evidence. The cases of Church v. Her Majesty's Advocate 1995--to which I referred earlier--and Elliott v. Her Majesty's Advocate 1995 are relevant. In the Elliott case, the court considered that the provisions of section 228(2) regarding additional evidence constituted a requirement that must be satisfied before the court could hear additional evidence.
Whereas section 228(2) allows a review of any alleged miscarriage of justice when that alleged miscarriage of justice relates to the non- production of additional evidence, the court is constrained by the terms of the statute to hear that evidence only if it was not heard at the trial, was not available and could not reasonably have been made available at the trial.
In earlier debates, the Minister has referred to the Thomson committee. In its first report in August 1971, it expressed the view that additional evidence could be presented on the basis of a reasonable explanation for the failure to adduce the evidence at the trial. The current provision in section 228(2), which derives from the Criminal Justice (Scotland) Act 1980, was considered by the court in the Elliott case. The Lord Justice- Clerk considers that, because Parliament did not adopt the reasonable explanation test suggested by the Thomson committee and instead provided the wording currently contained in the statute, it is clear that Parliament intended this more exacting test. The decision in that case reaffirmed the law as it stood prior to the Church case.
Given that in 1980 we debated such a volume of material for only eight minutes, I wonder what Parliament's intention was. I think that many people outside will wonder the same, and it is important for the Minister to comment tonight. Concern has been expressed in a number of quarters that the High Court's interpretation of the additional evidence test does not meet the demands of justice.
The interpretation of the non-availability limit and the introduction of fresh evidence are clearly an issue. In paragraphs 6.29 and 6.30 of his book "Criminal Appeals", Lord McCluskey suggests that non-availability raises a
Column 271
"simple question of fact: either it was available or it was not but one must also ask: `available to whom?'"Lord McCluskey concludes that availability must be considered from the standpoint of the appellant, full account being taken of what was practicable for him at the trial. He also states that the word "reasonable" is
"notoriously elastic and it remains to be seen how severely the High Court will apply this test if the applicant was in fact ignorant of the existence or potential of the additional evidence but could have learned of it by harder work or better detection work he or his advisers might have discovered it".
In all the circumstances, we support the view taken in the Church case, that a reasonable explanation for the failure to produce evidence based on a liberal interpretation of section 228(2) shows the route to reform. It is clear that the policy objective pursued by the Lord Justice-General is, in that case, correct, and that the proper test for dealing with the problem raised in the Church case would be along the lines of an excusable failure to produce the evidence at the original trial. That having been said, I acknowledge that the decision in the Elliott case to the effect that the Church case was wrongly decided is--in terms of the proper construction of the 1975 Act--correct.
I have considered the test proposed, under the Criminal Appeal Bill, that the terms of section 23(2) of the Criminal Appeal Act 1968 should be amended to provide that the evidence should be admissible and capable of belief. I approve of the change, and I think that many members of the Scottish legal fraternity consider that a similar provision should be enacted for Scotland.
Given the Pepper v. Hart decision in the House of Lords, I stand by the comments that I made in The Scotsman on 25 March 1995. I said then:
"The fact that the law is so rigid means that justice is not being done fairly".
That justice is not being done fairly is recognised not only by those who have recourse to the courts but by those who preside over them. It is incumbent on the Minister to provide a clarity that could assist the Law Lords when they examine cases such as this in the future.
7.15 pm
| Next Section
| Home Page |