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Column 1365
Question accordingly agreed to.New clause
Evidence
Lords amendment: No. 2, to leave out clause 4 and insert the following new clause--
(".--(1) In section 23 of the 1968 Act (evidence)--
(a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute--
"(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.",
(b) for subsection (2) (duty to receive evidence in certain circumstances) substitute--
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to--
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
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(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.", and
(c) in subsection (3), after "any" insert "evidence of a". (2) In section 25 of the 1980 Act (evidence)--
(a) in subsection (1) (power to receive evidence etc.), for paragraph (c) substitute--
"(c) receive any evidence which was not adduced at the trial.", (b) for subsection (2) (duty to receive evidence in certain circumstances) substitute--
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to--
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible at the trial on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence at the trial.", and
(c) in subsection (3), after "any" insert "evidence of a".")
The Parliamentary Under-Secretary of State for the Home Department (Mr. Nicholas Baker): I beg to move, That this House doth agree witthe Lords in the said amendment.
Madam Deputy Speaker (Dame Janet Fookes): With this, it will be convenient to take Lords amendments Nos. 34, 47, 48 and 52 to 54.
Mr. Baker: The amendments are all concerned with the receipt of fresh evidence by the Court of Appeal in England and Wales, and by the Northern Ireland Court of Appeal and the Courts-Martial Appeal Court, which operate the same procedures. At present, section 23 of the Criminal Appeal Act 1968 contains two separate provisions on the receipt of evidence on appeal. The relationship between them is somewhat complex and has given rise to difficulties for the Court of Appeal. It has created room for argument in appeal hearings about whether the court should receive evidence under the narrow, qualified duty in subsection (2) or under its general discretion in subsection (1).
We have therefore taken the opportunity to devise amendments to improve the construction of section 23. They are intended to provide a unified test for the receipt of fresh evidence which reflects the current practice of the Court of Appeal. We intend that the amendments should not in any way narrow the scope for the receipt of fresh evidence by the Court of Appeal. The Lord Chief Justice, when supporting the amendments in another place, confirmed that they would in no way lessen the likelihood of fresh evidence being received on appeal. He said that he could think of no occasion on which evidence received under the present section 23 would not be received under the new section proposed in the new clause 4.
Lords amendment agreed to.
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Clause 6
Powers exercisable by registrar
Lords amendment: No. 3, in page 5, line 14, leave out from beginning to ("but") in line 17 and insert
("No variation of the conditions of bail granted to an appellant may be made by the registrar unless he is satisfied that the respondent does not object to the variation;")
Mr. Nicholas Baker: I beg to move, That this House doth agree with the Lords in the said amendment.
This is a minor amendment that is designed to clarify the drafting of clause 6.
Lords amendment agreed to.
Clause 7
Appeals in cases of death
Lords amendment: No. 4, in page 5, line 33, leave out
("by virtue of paragraph (a) above")
and insert
("in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission")
Mr. Nicholas Baker: I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker: With this, it will be convenient to discuss also Lords amendments Nos. 5 to 9, 45 and 49 to 51.
Mr. Baker: These are minor and technical amendments that are designed to ensure that the provision in clause 7, allowing appeals to be conducted on behalf of deceased persons, operates smoothly. Lords amendment agreed to .
Lords amendments Nos. 5 to 9 agreed to.
Clause 13
General provisions about references
Lords amendment: No. 10, in page 10, line 29, leave out from ("verdict") to end of line 2 on page 11 and insert
(", finding or sentence shall not be made under any of sections 9 to 12 unless--
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider--
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.")
Mr. Nicholas Baker: I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker: With this, it will be convenient to discuss also Lords amendment No. 11.
Mr. Baker: When setting out in clause 13 the broad criteria for the referral of a conviction, verdict or finding
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by the commission to the courts, we have sought to enable the commission to refer cases when there appears to be a real possibility of a subsequent appeal succeeding and there is some new element, whether argument or evidence, for the courts to consider but, when setting reasonable criteria for references, we are conscious of the need to ensure that references are not precluded in circumstances in which injustice would result.Amendment No. 10, therefore, enables the commission to refer a conviction, verdict or finding in the exceptional case where the existing criterion for there to be argument or evidence not already raised in any relevant proceeding is not met, but there are, nevertheless, compelling reasons that justify its referral. Amendment No. 11 is purely a drafting amendment.
Mr. Alun Michael (Cardiff, South and Penarth): It is always entertaining to hear a Minister urge the House to agree to something that he resisted in an earlier debate. We welcome Lords amendment No. 10 because it allows some flexibility in the rules which govern whether a case can be referred to the Court of Appeal.
In the Bill as drafted originally, there had to be argument or evidence that had not been raised previously in any way, shape or form. In Committee, we suggested an amendment to allow consideration when the argument or the evidence had not been raised
adequately--which is another way of putting the amendment that is before us today. We touched on the issue again on Report on 26 April. Interpretation by the Court of Appeal changes over time. The Police and Criminal Evidence Act 1984 has affected how courts look at admissions of guilt, and mistakes by lawyers can mean that an issue is not argued fully.
I welcome the Lords amendments, but I note that such matters may be considered in exceptional circumstances. We have always believed that such appeals should be catered for in exceptional circumstances and that they should be allowed to reach the Court of Appeal. I cannot let the Minister's authoritative comments on Lords amendment No. 10 pass without pointing out that, basically, we told him so.
Lords amendment agreed to .
Lords amendments Nos. 11 to 16 agreed to.
Clause 18
Power to require appointment of investigating officers
Lords amendment: No. 17, in page 14, line 38, leave out ("such other police force as the chief officer thinks fit") and insert
("another police force selected by the chief officer")
Mr. Nicholas Baker: I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker: With this, it will be convenient to discuss also Lords amendments Nos. 18to 21.
Mr. Baker: Lords amendments Nos. 17 to 21 empower the commission to approve or disapprove the outside force to be brought in to investigate any case at its request.
Mr. Michael: As with a number of other Lords amendments, Lords amendments Nos. 17 to 21 deal with points that Labour Members raised in Committee and on
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Report. Their importance should not come as any surprise to Ministers. A letter from the Association of Chief Police Officers sent to the Home Office on 9 May 1994 said that it would be unwise for West Midlands police to investigate West Yorkshire while the West Yorkshire police were investigating the West Midlands on a different matter. During debate in this place, the Minister suggested that that was not a problem and I said at the time that I believed that he was wrong.The Minister had not understood the limitations on the powers. Clause 18(4)(b) does not give the commission the power to break the arrangement whereby the West Midlands force investigates the West Yorkshire force and vice versa. The Bill empowered the commission only to get an outside officer to investigate and it was then up to the chief officer to choose the other force. That was made clear in debate on 26 April this year.
In Committee in another place, the Government accepted the case. Baroness Blatch moved an amendment to that effect and said: "Although such a scenario"--
as we depicted in this place--
"seems a little improbable, not least because our current experience would suggest that an outside force is needed in relatively few cases, we nevertheless think it best to enable the commission . . . to approve or disapprove the outside force . . . to be brought in".--[ Official Report, House of Lords , 12 June 1995; Vol. 564, c. 1606.]
I am glad of the confirmation that we were right. The Lords amendment is a small step in the right direction as it ensures that there is objectivity and transparency in the investigation of such cases.
With the leave of the House, Madam Deputy Speaker, I shall deal with an allied matter and, therefore, not speak to the next group of Lords amendments. I ask the Minister to clarify one other matter in relation to investigations. Some observers believe that a major concession has been given and they are not sure whether it goes as far as they think. Baroness Blatch said:
"the commission does not need special provision in order to direct and supervise its own staff. Nor does it need such provision in order to engage the services of an outsider--for example, an accountant--to investigate a case for it".
What Baroness Blatch said goes further than the Lords amendments in this group and the next. She said:
"the Government intend that the commission should have its own unit of experienced investigators to advise it and also, as the Noble Lord suggested, to play a part in the direction of investigations". That is an important statement, which relates to matters that the Opposition raised on a number of occasions in this House. Baroness Blatch continued:
"The Government's position has always been that the commission can employ investigative staff and can engage investigative expertise."--[ Official Report, House of Lords , 26 June 1995;Vol. 565, c. 578-81.]
In contrast, in a debate in this House, the Minister gave no hint of a concession when he rejected our new clauses 1 and 2, saying that they
"would enable the commission to draw on in-house investigators or on those that it has contracted in, as well as on investigating officers appointed at its request by the appropriate chief constable. They would, in effect, give the commission power to appoint an in-house investigations unit to make inquiries . . . I am not convinced that creating an in-house investigative capacity would be helpful or necessary."--[ Official Report , 26 April 1995; Vol. 258, c. 887.]
Will the Minister now tell us who is right? Does he support the interpretation of Baroness Blatch in another place? Do the Lords amendments have the effect that we
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looked for but which the Minister rejected during the debate here? Do Baroness Blatch's words give the correct interpretation of the Government's intentions--yes or no? I look forward to the Minister's response.7 pm
Mr. Beith : I had some questions on the same point, which I intended to raise during the debate on Lords amendments Nos. 23 and 24. If you will allow me, Madam Deputy Speaker, I might still do so.
Mr. Nicholas Baker: If you are to allow us to debate also the next group of amendments, Madam Deputy Speaker, for the convenience of the House, as the hon. Member for Cardiff, South and Penarth (Mr. Michael) rightly said--
Madam Deputy Speaker: Order. It must be clear that proceeding with the debate in such a way meets with the general wishes of the House.
Mr. Beith: It might be of assistance if I speak now to the next group of Lords amendments. It is an odd way to proceed, but I shall happily do so for the convenience of the House.
The assurances that Baroness Blatch gave in relation to Lords amendments Nos. 23 and 24--or to their equivalent amendments in the Lords--were, as the hon. Member for Cardiff, South and Penarth (Mr. Michael) said, of considerable significance. The amendments add to the Bill usefully, and the assurances that Baroness Blatch gave put them in an even stronger light.
She said:
"I said in my response to the amendment that the Government intend that the commission should have its own unit of experienced investigators to advise it and . . . to play a part in the direction of investigations."
She said that she understood that investigations can be undertaken by the commission, and added that
"The Government's position has always been that the commission can employ investigative staff and can engage investigative expertise."--[ Official Report, House of Lords , 26 June 1995;Vol. 565, c. 581.]
I have to say that that was not the impression conveyed on Second Reading or in Committee in this House.
My view was that, whereas in most circumstances it would be satisfactory for the commission to make use of a police force to carry out investigations, it might occasionally be better to make other arrangements or to have a unit of investigators on the commission's own staff. Confidence in the commission would be greater if that were the case from the start. It will be very good news if, as seems to have become clear during our proceedings, that is to be the case. I hope that it is, and that the combination of Baroness Blatch's assurances and Lords amendments Nos. 23 and 24 may achieve that objective. I should be grateful to hear that confirmed by the Minister.
Mr. Nicholas Baker: We have transgressed the rules once, and you are allowing us to do it again, Madam Deputy Speaker.
The Lords amendments grouped with Lords amendment No. 17 arise out of concerns expressed in the House by the hon. Member for Cardiff, South and Penarth and others that the commission's powers under clause 18 might be insufficient to enable it to prevent, where it thought it desirable, two forces investigating one another
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on behalf of the commission. We considered that scenario to be a little improbable, not least because of our current experience, which suggests that an outside force is needed in relatively few cases, but we nevertheless think that it is right to give the commission the necessary powers, hence the Lords amendments.On Lords amendments Nos. 23 and 24, questions arose in Committee and in another place as to whether the commission would be invariably bound to use the police or some other public body to investigate possible miscarriages of justice. The purpose of the amendments is to make it clear that the commission is not constrained in that way. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) asked whether the commission members will undertake major investigations themselves. When it comes to what might be called police-type inquiries--interviewing witnesses, retracing car journeys and so forth--the Government expect the commission as a rule to use clauses 18 and 19 to obtain assistance from the police or from another public body.
The Government have no intention of funding a team in the commission whose job would be to operate as a mini-police force, duplicating work which could, and should, be done by the police or other public bodies under clauses 18 and 19, but we accept that, exceptionally, the commission might want one of its staff or someone else to do investigative work such as would otherwise be done by a police officer under clause 19. No one has provided a convincing example of such a case, but it could, theoretically, happen. It is much more likely that the investigations that the commission will undertake will not require police experience or expertise--for example, telephone inquiries, getting hold of copies of relevant papers and obtaining expert analyses and opinions. That is how we envisage the commission operating in practice.
Mr. Michael: I return to the words used by Baroness Blatch, who stated specifically that
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"the Government intend that the commission should have its own unit of experienced investigators to advise it and also . . . to play a part in the direction of investigations".--[ Official Report, House of Lords , 26 June 1995; Vol. 565, c. 581.]That comment was specific, and the Minister now seems to be contradicting it--as his colleagues did in the Commons last time around. It is important for us to know whether the Minister has accepted the argument that we have stressed strongly, as Baroness Blatch seems to have done, or whether he continues to insist on the commission's not having any sort of body, however small, of competent investigators. That is an important point. The Minister has not dealt with the comments of Baroness Blatch. Which Minister is telling us what will happen?
Mr. Baker: The hon. Gentleman is taking the word "investigation" into some magic fields. I have made it clear that we do not envisage the commission carrying out large-scale investigations. We envisage it doing investigative work from time to time but, generally, the right people to investigate will be the police or other bodies. There will be investigative work that it might be appropriate for the commission's unit to do, such as advising the commission, helping others direct and supervise investigations and liaising with investigations. Those are the types of investigations that the unit in the commission can do, rather than the large-scale investigations that the hon. Gentleman has in mind.
Lords amendment agreed to.
Lords amendments Nos. 18 to 45 agreed to [some with Special Entry].
Lords amendment No. 46 disagreed to.
Lords amendments Nos. 47 to 55 agreed to.
Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their amendments to the Bill: Miss Ann Widdecombe, Mr. Simon Burns, Mr. David Lidington, Mr. Alun Michael and Mrs. Barbara Roche; Three to be the quorum of the Committee.-- [Mr. Nicholas Baker.]
To withdraw immediately.
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