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4.49 pm
Mr. Jack Straw (Blackburn): As the Home Secretary said, the Bill is important. As I said during the debate on the Loyal Address, we welcome the Bill's principle and purpose, although we shall of course ensure that it is subject to full scrutiny in the House, as it has been in the other place.
The Bill is about procedure. For some people, the process by which courts operate is a dry, technical subject of second order, but in practice the substantive rights that citizens should enjoy, such as the right to justice, depend on the machinery--the procedure--by which those rights can be exercised. The process is therefore of immense importance. It determines our court system's character and the criminal justice system's public reputation.
In the 1970s and 1980s, that public reputation was badly damaged by mounting evidence that the system was unbalanced in favour of the prosecution. Judges' rules which were supposed to provide clear guidance to the police about the treatment of suspects and the taking of evidence from them turned out to be ineffective and unenforceable. Corners were routinely cut by investigators. The culture was that, broadly, the end justified the means and that if it was known to investigators that a suspect had committed a series of crimes it was acceptable to adduce informal oral admissions of guilt and sometimes to encourage confessions by physical force.
The lack of effective supervision of the process inexorably led a minority of investigators down the path of corruption, of allowing the guilty to go free in return for favours and, even worse, of "fitting up" innocent people, either by the manufacture of prosecution evidence or by the suppression of evidence in the hands of the police that would be helpful to the defence.
Public disquiet about those abuses led among other things to the establishment of two royal commissions on the criminal justice system. The first of those, chaired by Sir Cyril Philips, reported in 1981. Its recommendations led to the Police and Criminal Evidence Act 1984 and to the establishment of police and criminal evidence codes. That royal commission said that there should be a change in the prosecution system to detach prosecutors from the direct control of the police. However, the Crown Prosecution Service was then established as a centralised national service, explicitly against that royal commission's recommendation.
Evidence of serious defects in the system continued to emerge. My hon. Friend the Member for Sunderland, South (Mr. Mullin)--having heard part of the Secretary of State's speech, he has had to leave the Chamber, but I hope that he will return to make a speech--played a leading part in shining a light on some of the most disreputable of those practices with his exposure of miscarriages of justice in the Guildford Four and Birmingham Six cases. My hon. Friend may be rightly feted for that now, but it is worth remembering that, for many years before the truth emerged, he was roundly abused by many people, including Ministers, for his efforts.
Following those notorious miscarriages of justice, the second royal commission was established under the chairmanship of Viscount Runciman. Its report prompted some changes--including a few of the well-known 27 points in the Secretary of State's speech to the Conservative party conference in 1993--such as new and welcome machinery for the investigation of miscarriages of justice. We appreciate that the Secretary of State did not have time during that speech to name the author of every point.
The courts, too, gradually responded to defence lawyers' demands for far greater access to so-called "unused material" held by the prosecution. After a series of Court of Appeal rulings--not all consistent with one another--in the Ward case, the Saunders case, the Davis, Johnson and Rowe case and others, the pendulum has swung from the position 20 years ago when the prosecution was under virtually no duty to disclose any unused material, to the position today, when it must disclose almost all unused material and courts can order
the disclosure of sensitive background information, including the sites from which surveillance has been undertaken and the identities of informants.
The first priority of any criminal justice process must be to ensure, so far as is humanly possible, that no person innocent of a crime is convicted of it. The effect of a miscarriage of justice on an individual is so great that that consideration must outweigh all others. It is for that reason, above all, that the fundamental requirement is on the prosecution to prove its case and not on the defence to disprove it.
Other priorities, however, are also of great importance. They include ensuring that the guilty are convicted and are not able to walk free from court by what amounts to an abuse or a defect of process; that victims and witnesses are accorded a proper role and dignity in the process; and that public confidence in the system is maintained and enhanced. It is widely accepted by hon. Members on both sides of the House and by people throughout the country that criminal procedure, especially in respect of disclosure of evidence, has become unbalanced in favour of the defendant.
There have been two results. First, an immense and disproportionate burden has been placed on the police and the prosecution to disclose anything unused but potentially of relevance to the defence. That has added to delays in the court system and has tied up huge amounts of police and Crown Prosecution Service time. Last year, Brian Johnson, former chief constable of Lancashire police, wrote to me setting out what had happened in just one case in which that force had been involved.He admitted that it was a complicated case, but said:
That is profoundly unsatisfactory.
The second result is that some well-founded prosecutions have had to be abandoned because otherwise critical information about informants or surveillance sites would have had to be disclosed, putting at risk not just registered informants, whose safety must be defended,but innocent members of the public who had co-operated with the police to help to secure the conviction of serious wrongdoers.
I give just one example. It relates to a case at Bristol Crown court in 1993. During 1992, police officers mounted an operation in Bristol to curtail a large amount of drug dealing in the city. So that the people dealing in drugs could readily be identified, the police mounted an elaborate operation which involved police officers posing as buyers making test purchases for crack cocaine. They were supported by police officers with a video camera in an unmarked van and by other officers in a static observation point from which the events were also recorded. The defendants were arrested after having sold crack to the undercover officers, but in court the charges
against nine of the defendants were withdrawn after the defence demanded to see surveillance film taken from a council flat.
The substance of the defence case--this makes the Secretary of State's point about fishing for artificial defences--was one of identification. The police had already made full disclosure of the video recordings taken from the unmarked police van which gave the evidence of identification--that was all the evidence that the prosecution was going to use--but defence counsel for the nine defendants sought full disclosure of the video recordings taken from the static observation point. That had only one purpose: to disrupt the case to the point at which there had to be an acquittal, which is what happened. As the disclosure of the video evidence from the static observation point would palpably have identified the camera's location and therefore put the innocent person who had allowed that camera to be put there at serious risk, a decision was taken to withdraw the remaining charges.
One could cite many other cases. Although the decision to require disclosure was made by a judge on application in some of them, in many others prosecuting counsel anticipated the judge's decision and instructed the police to disclose the names of informants or surveillance locations. When the police felt unable to do so, cases were withdrawn before reaching open court.
Mr. Donald Anderson:
Even under the current system, the trial judge has to perform a balancing exercise as to whether the evidence is relevant to the defence. I do not know all the details of the case to which my hon. Friend referred, but it may be that a more robust judge would have taken a different view from the Lord Chief Justice in the case of the Crown v. Keane.
Mr. Straw:
I entirely accept my hon. Friend's point.It is on record that, unfortunately, some judges are robust and some less than robust. My hon. Friend makes the point that because of confusion there has been much second-guessing by prosecuting counsels, with cases never reaching court in the first place.
The current Lord Chief Justice, Lord Taylor of Gosforth, has shown, rightly, that no one is more concerned than him to see that the rights of the accused are properly upheld. In his Tom Sargant memorial lecture two years ago, Lord Taylor set out the consequences of the current confused state of the law:
Lord Taylor was entirely right.
The Home Secretary first presented his proposals on16 May 1995, when he published a consultation paper, which I welcomed at the time. We are glad that he has since responded to the many suggestions made, which are
reflected in changes to the Bill that we hope will be incorporated in Committee. The Bill has been improved in the other place, but the procedure that the Government adopted there initially was not, in the context of bipartisan debate, of the best. Their Lordships encountered grave difficulty considering the draft code and whether it could be laid before Parliament subject to the affirmative resolution procedure. Following some adjournments in the other place, that provision has been accepted.
The Government were defeated in the other place on a proposal by Lord Ackner to strengthen the indemnity provided to protect justices and justices' clerks against orders for costs and other sums in respect of matters arising from criminal jurisdiction. I am glad that the Government have accepted that addition.
Some parts of the Bill could still be improved, and I invite a response from the Minister in winding up this debate and in Committee. When I responded to the Home Secretary's statement last May, I said that there should be sanctions against the prosecution as well as the defence when the rules in the Bill are not followed. That is important in ensuring equality of arms between defence and prosecution. There are stringent sanctions against the defence for failure to disclose and also against the defendant if he or she makes a late disclosure.
A tiny minority of abuses in the 1970s and 1980s soured the criminal justice system and led to imbalance. A breach of the rules by the prosecution ought to be underpinned by disciplinary action by the police and,in extremis, by criminal action. A palpably negligent and serious breach of the rules should lead to disciplinary action by the police or CPS. A deliberate or reckless breach should be subject to criminal proceedings.
While I accept that one of the Bill's main purposes is to reduce delays, there is concern that it might unwittingly increase them. Clause 1 provides for primary prosecution disclosure in the case of summary and either-way offences only when the accused pleads not guilty. The sensible intention is to prevent unnecessary work for the prosecution where the accused intends to plead guilty--I understand the mischief that is being addressed. However, there is a real danger that defendants will be advised to plead not guilty, as that is the only way that they will gain access to material. That would increase the delays that already bedevil criminal procedures and we must carefully consider how to overcome that difficulty--particularly as defence lawyers have become adept at ensuring that the cost slips that they submit to the Legal Aid Board are as extensive as possible. The existing rules are abused by some defence solicitors so that even in trivial cases, they refuse to proceed to a trial or disposal until all the material to which they are technically entitled is produced.
Paragraph 2.1 of the code of practice places a duty on the prosecutor to provide evidence to the defence that he believes would undermine the prosecution's case.I question whether that is too strong a test. Would it not be better to use the test employed by the Home Office in other contexts, of whether the evidence might cast significant doubt on the prosecution case? Paragraph 6.6 makes reference to sensitive material being that which is given in confidence. Much of the rest of the code is specific, but "in confidence" covers a multitude of categories and that definition should be reconsidered.
The Home Secretary referred to prohibitions in the Bill and to amendments that he will table against the misuse of evidence. In the other place, my noble Friend Lord Williams tabled amendments designed to prevent pornographic material contained in witness statements being circulated in prisons. It is an appalling but sad fact that when a small child is killed, sexually abused or raped, photographs and statements about the family come into existence. Defendants have access to that material for the necessary reasons of their defence, and they are able to circulate it in prison. The material can remain in circulation even after the defendant has left prison.My noble Friend proposed to stop such poisonous material being circulated in that way, and we regret that his amendments were resisted by the Government. I hope that the Secretary of State's amendments will deal with appalling misuse of the kind that I have described.
We agree with the principle that the defence should disclose the general nature of the case on which it relies. I do not believe that once a prima facie charge has been established against a defendant it is onerous for him to have to reveal the general nature of his defence, such as a claim that he was not present when the crime was committed or that he was present but that his conduct did not add up to the charges. We cannot accept a position in which defendants try to plead alternative defences--that they were either not there or their conduct did not amount to the crime charged--or in which, as we know happens, they wait until very late in the trial process and go fishing for defences.
I wish to deal next with the comments that the Home Secretary made about Sir Richard Scott's recommendations on public interest immunity in criminal cases. To answer the point that the hon. and learned Member for Burton (Sir I. Lawrence) made in an intervention on the Home Secretary's speech, as I read section K, chapter 6 of the Scott report, Sir Richard Scott anticipates that public interest immunity certificates could be used in criminal cases and, indeed, it is impossible that circumstances could arise in which they could not be used, given the nature of the material qualified by PII certificates. But Sir Richard recommended categorically that PII claims on a class basis should not be made in future. He said that PII contents claims should not be made for documents which might be of apparent assistance to the defence. He also made some detailed recommendations about the use of PII certificates.
We all listened with care to the Home Secretary's comments, and I am sure that both sides of the House agree that the Scott report is complicated. Sir Richard Scott raised some issues of principle on which the Government could and should make more prompt decisions than they will on others. For example, it would be possible to make early decisions on class claims.Sir Richard explains in detail the reasons behind his view and why, in his judgment, the avoidance of class claims would not in practice prejudice sensitive intelligence material that obviously should not be seen in open court.
We welcome the proposals in clauses 23 to 34 on preparatory hearings. I wish to make a point about the scope of clause 29, which provides for the right of appeal--with the approval of the trial judge or the Court of Appeal--against a ruling at a preparatory hearing on the admissibility of evidence or other questions of law. We agree that that would be a satisfactory way to deal with such issues before trial, but--I genuinely seek
information on this point--it seems that no appeal would be allowed against the striking out of counts in the indictment or, once there has been a preparatory hearing and the prosecution case has been heard, against the dismissal of a case altogether before the defence has put forward its case.
That is possibly the most important power belonging to the trial judge. In most such cases, judges act entirely correctly and there is no dispute about the decisions, but not all judges are robust--the adjective used by my hon. Friend the Member for Swansea, East (Mr. Anderson). Sometimes, the decisions to strike out counts in the indictment or to dismiss a case before it goes to a jury are incomprehensible. If it is right, as we believe, for a right of appeal to be available on decisions on evidential matters or other issues of law in preparatory hearings,it would also be right to allow appeals in such situations. The appeals could be allowed only in controlled circumstances or with the approval of the Attorney-General to prevent a sudden rash of appeals.
The Home Secretary referred to part V of the Bill about transfers from magistrates courts and we will examine those in detail. Clause 43 would change the current law that applies to those aged under 17 who are remanded in custody, and it would allow remands, in certain circumstances, to be extended from eight days to 28 days without a further court appearance. Although we believe that that power should not be used too often, the change in the law would be appropriate given the extreme shortage of secure local authority accommodation.In many cases these days a juvenile may be remanded to secure accommodation hundreds of miles away from the court in which he is to appear.
"For example, during a long running corruption enquiry in Lancashire, a police officer was employed full time supervising access to material by one solicitor for a continuous period of three months. Additionally in that case thousands upon thousands of documents were copied for the defence--the rental costs of copying equipment alone was not insignificant.
Each document in the case had to be considered in respect of each of a number of defendants, firstly to determine whether it was material in relation to a particular defendant and then as to whether it should be scheduled as sensitive or non-sensitive. In the inquiry I quote above, given the number of defendants and the thousands of documents involved, it was estimated that over 5.5 million decisions had to be taken in respect of the disclosure of unused material."
"However, the one-way traffic of disclosure by the prosecution, with no corresponding duty on the defence, has given rise to grave difficulties both for the Crown Prosecution Service and for the courts . . . The prosecution often have to anticipate what may conceivably be of assistance to the accused without any help from the defence so as to narrow the field. Indeed, there are often more and more searching requests by the defence for material on a purely speculative basis . . . The defence of duress, which used rarely to be raised, has suddenly become all the vogue and is used to seek disclosure about informants which, if given, would endanger them. Courts are being required to peruse large quantities of documents and judges, instead of being in court, are sitting in their rooms to decide what disclosure is to be made. This is an unacceptable state of affairs. It shows that the balance in this area has become distorted."
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