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6.27 pm
Mr. Chris Mullin (Sunderland, South): For the first time in the debate, the moment has come to hear from someone who is not a lawyer. I say that with all due respect to my hon.--and learned--Friends on both sides of the House who are lawyers, but justice is too important to be left entirely to lawyers. I apologise for my absence earlier in the debate, but I had an appointment with a Minister that had already been rearranged four times, and I did not think that I could rearrange it again.
I endorse what my hon. Friend the Member for Swansea, East (Mr. Anderson) said about the possibility of bringing the Bill before a Special Standing Committee so that we could take evidence from parties that have taken a particular interest in the issues covered by the Bill. There is a need for calm consideration of the issues, because they are rather important.
I also welcome the point made by almost everyone who has spoken--certainly by the hon. Member for Vale of Glamorgan (Mr. Sweeney) and the hon. and learned Members for Burton (Sir I. Lawrence) and for Montgomery (Mr. Carlile). I shall put it as the hon. Member for Vale of Glamorgan did, by saying that it is important to err on the side of too much disclosure rather than too little. If we must make a choice, that is the choice that we should make. As the hon. and learned Member for Burton says, the prosecution has many advantages and it is important to protect the defence.
Parts I and II of the Bill deal with disclosure. In my view, the Bill should be a little more controversial. Let me say at the outset that I entirely accept that the criminal justice system should not be just a game of chance in which clever lawyers vie to outwit one another without regard to the interests of justice. Therefore, to the extent that the Bill facilitates a genuine search for truth and justice, I welcome it. I do, however, have serious reservations. I am not at all convinced that the Bill as at present drafted represents an improvement on existing case law.
I understand that the Bill has been prompted by three main considerations, and the Home Secretary referred to some of those in his speech. First, defence lawyers--particularly in fraud trials--have been demanding vast quantities of documents, much of which are said to be irrelevant to the case. Secondly, unscrupulous lawyers are said sometimes to demand details of informants and other confidential information in the hope that the Crown can be persuaded to abandon the prosecution rather than jeopardise its sources. I have no doubt that there is some basis for both of those arguments, and examples can be found--some have been given in the debate--to illustrate them. I believe, however, that those reasons have been talked up by those interested in obscuring the third, and by far the most important, reason for concern about disclosure--that the failure of the police and the Crown to disclose evidence inconvenient to their case has been a feature of most of the proven and alleged miscarriages of justice in the past 20 years.
I shall provide some examples, because we should not talk about the matter in terms of dry theory. The scale of non-disclosure in some of the cases that are now celebrated is truly staggering. In the Birmingham case, about 2,000 statements judged by the West Midlands police to be non-material disappeared. In November 1975--four months after the Birmingham defendants were sent to prison for life, and while their appeal was pending--a number of genuine members of the Birmingham IRA were arrested, at least one of whom gave the police a detailed account of the Birmingham IRA, including a number of names. He gave the police the name of a man said to be one of those who placed the bombs in the pub. This happened in November 1975--one year after the pub bombings and a few months after the trial. Special Branch compiled a long statement from the man, a precis of which did not surface until 1990, and then only because someone with access to police archives felt sufficiently strongly to send a copy to Granada Television.
Among the documents disclosed at the 1991 appeal by the Birmingham Six was a statement from a colleague of the forensic scientist Dr. Skuse, who had obtained a positive test on a swab from the hand of a passenger on the Liverpool to Belfast ferry on the same evening that five of the Birmingham Six were tested by Dr. Skuse at Chorley. The Liverpool passenger had been released after he was found to have been innocently contaminated. Had that statement been available years earlier, it would have had a significant impact on the Crown case. It was obtained in time for the trial, but was not disclosed to the defence. The Attorney-General, in a letter to me dated17 May 1991, said:
I have a number of letters from the former Attorney-General--now the Secretary of State for Northern Ireland--in which he talks about regrettable oversights which, he has been assured, were entirely inadvertent.
In the Guildford case, non-disclosure took place on an even more shocking scale. On 12 December 1975, four members of an IRA unit were captured at Balcombe street in central London, two of whom were interviewed the following day by Commander Jim Nevill and Detective Superintendent--now Sir--Peter Imbert. During the interview, the two IRA men admitted to bombing the King's Arms at Woolwich on 12 December 1975--one of the offences for which the Guildford Four had just been convicted.
In a further interview on 30 December, one of the men told Nevill and Imbert that four members of the Balcombe street unit had been responsible for the Woolwich explosion. Nevill and Imbert--according to their interview notes--both expressed concern at the possibility that innocent people had been convicted and an anxiety to get at the truth. Nevertheless, no further interviews took place, and no charges or further investigations followed. Solicitors acting for the four persons already convicted were not informed. The Director of Public Prosecutions was informed, but took no action.
When the Balcombe street IRA unit came to trial, not only were the two men who had given the statements not charged with the Woolwich bombing--which they had admitted to--but steps had been taken to excise from the
statements of the forensic scientists, Messrs Higgs and Lidstone, all references to connections between Woolwich, Guildford and the other offences for which the Balcombe street unit was obviously responsible.
At the Balcombe street trial, Commander Nevill told the court that he instructed Higgs to remove references to Woolwich from his statement at the instigation of the DPP. Let it not be said that it is only the police who lose inconvenient evidence--frequently in such cases it is the DPP. Detective Chief Superintendent Huckelsby was asked at what stage he had been asked to omit from his list of offences the Woolwich bombing and four others that appeared to be linked. He replied:
Documents disclosed to the defence in the Guildford case in preparation for the 1989 appeal at which the convictions were quashed showed that one of the four, Gerry Conlon, had a cast-iron alibi all along--an alibi, incidentally, of which he knew nothing. He was not therefore in a position to request its disclosure. An alibi witness had seen Conlon asleep at the hostel at Quex road, Kilburn, at the time he was supposed to be carrying out one of the bombings many miles away. The witness's statement was properly passed by the police to the DPP, but it did not become available to the defendants for another 15 years.
I could cite many more examples. I realise that it could be said that all of these cases occurred many years ago and that everyone concerned has cleaned up their act since then. However, that is not my experience. I sat through four preparatory hearings for the final Birmingham appeal in 1991 in which Crown counsel Graham Boal tried the patience of the court with weeks of prevarication about disclosure. Nothing in Mr. Boal's demeanour suggested that the DPP had learnt any lessons from the Guildford convictions, which had been quashed two years earlier. On the contrary, I heard him repeatedly argue that the DPP would disclose to the defendants only what he considered to be relevant and only when he was ready to do so.
Non-disclosure has been a feature of many other celebrated miscarriages of justice, and some cases which are still alleged to be miscarriages of justice. In the Judith Ward case, non-disclosure was absolutely central. In the Stefan Kisko case, it was shown that he was convicted of a crime that he could not physically have committed, and it was many years before that poor man's conviction was quashed. Tomorrow, there is to be a debate on the Carl Bridgewater case, in which once again non-disclosure is a major feature. The Minister admitted during Home Office questions on 15 February that nine years had elapsed between the murder of Carl Bridgewater and the revelation that two fingerprints--so far unidentified--were found on the bicycle belonging to the murdered boy. Obviously, if that information had been available at the trial, it might have had a major impact on the outcome of the case. I am also dealing with the case of Brian Parsons, who is in prison for a murder that many people who have looked carefully at the case do not believe he had anything to do with.
The force involved in that case is the Devon and Cornwall police force, which has a good reputation--justifiably so in some respects. It behaved honourably
when clearing up the Birmingham bombings case, but in the case of Brian Parsons, which is on its own patch, it is doing everything in its power to obstruct proper access to exhibits. When people tell me that all the cases occurred a long time ago and things have changed now, I do not accept it.
If the pendulum has swung too far, as the Home Secretary and others believe, the police and prosecuting authorities have only themselves to blame. In the light of experience, it will be a long time before I accept that the good will of the Crown and the professional integrity of those involved in investigation and prosecution are a sufficient safeguard against wrongful conviction. That is the background to my approach to the Bill.
I have several specific reservations that are shared by just about everyone--including the Law Society and, I am pleased to say, Lord Runciman--who has taken a serious interest in miscarriages of justice. Those who are most enthusiastic about the disclosure aspects of the Bill are those who were among the last to realise that there was a problem with miscarriages of justice.
My first reservation is that, even with the best will in the world--and I accept that there are many investigators and Crown prosecutors of integrity--the Bill places too heavy a burden on the prosecutor. How can he or she be expected to represent the interests not only of the Crown, but of the defence, when it comes to deciding what is to be disclosed?
My second reservation is that the Bill's definition of what should be disclosed is too narrow. It describes it as any material that
There is a simple solution to that problem which does not involve great expense or bureaucracy: the defence should have access to material at its place of storage and it should be able to copy material that it decides is relevant. The decision should be made by the defence, not by the prosecution.
My third reservation involves the list of available material with which the prosecution is obliged to supply the defence. How much detail should it go into? It is vital that any schedule should clearly show the significance of what is available.
My fourth reservation involves what is in the public interest. It is true that that is a matter for the court to decide, but we must pay careful attention to it. The record already shows that Her Majesty's customs, the police, the Crown Prosecution Service and the Government have an entirely different concept of public interest than do most ordinary citizens. The Matrix Churchill case offered a rare insight into the official attitude to public interest. It is no good saying that it is ultimately a matter for the judge. We saw yesterday that the Crown was prepared to go to some lengths to outwit the judge in the Matrix Churchill case. My hon. Friend the Member for Livingston(Mr. Cook) yesterday quoted a minute from a civil servant to the Secretary of State for Trade and Industry, which stated that the list of documents on the second public interest immunity certificate should be removed, because to retain the words
"It is most probable that an oversight or administrative error was responsible for what was undoubtedly a most unfortunate error".
"This was discussed following the submission of my first major report to the DPP at a conference with counsel."
"in the prosecution's opinion might undermine the case".
"might increase the risk that the judge will call for copies of the documents."
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