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Mr. Deputy Speaker (Mr. Michael J. Martin): Order. I advise the hon. and learned Gentleman that he may be going wide of the Bill before us, because he is dealing with cases that would not be affected by the Bill.
Mr. Garnier: I apologise, Mr. Deputy Speaker. I was seeking to show that the Criminal Cases Review Commission may have to deal with a number of cases as a consequence of this legislation--although not many--but that it was not for us to order its priorities. I was merely illustrating that by mentioning the case with which I had to deal. I have approached the Criminal Cases Review Commission on behalf of Mr. Raphael Rowe, and I am happy to say that, at last, that case has been referred to the Court of Appeal. It is not for us to say to the commission, "Look at this case before another", and it is not for us to tell the Court of Appeal how to order the list of referred cases.
As the hon. Member for Sunderland, South said, the Bill comes to us with a good degree of all-party and non-party agreement from the other place. It was first introduced in 1998, but fell as a result of lack of time. Fortunately, Lord Ackner was able to reintroduce it in March 1999, and the record is there in the Lords Hansard for those who wish to see how unanimous was the support for this small but important Bill. I invite my hon. Friends to join the hon. Member for Sunderland, South in supporting it.
The Bill introduces an entirely necessary, but humane and civilised way of righting a wrong. The wrong revealed was that in the case of Iain Hay Gordon. He was caught by the drafting error or omission following the amendment of the Trial of Lunatics Act 1883 by the Criminal Procedure (Insanity) Act 1964, which simply changed the name of the verdict in cases such as this but had no real bearing on the stigma or status of the individual defendant.
For all I know, Mr. Hay Gordon may have killed the lady in question in the early 1950s. I believe that the hon. Member for Sunderland, South is one of those who think that he probably did not or may not have done. In any event, it seems wholly wrong that a person should be denied access to a review procedure by reason of an obvious drafting omission or error in the 1964 legislation.
The matter touches on the way in which we view the insanity defence. As I understand it, the vast majority of prosecuted mentally disordered offenders in this jurisdiction--England and Wales--are convicted rather than excused, and in most cases, mental disorder does not negate criminal responsibility, but instead may lead to treatment in the form of a hospital order. Moreover, the practice of punishment presupposes the very responsibility that the legally insane lack. Therefore, as none of the purposes behind punishment can be legitimately applied to the person who was judged to be insane at the time of committing the offence, exculpation should follow. Hospitalisation presupposes responsibility for the offence and brings with it the stigma of guilt.
For the past 45 years or so Mr. Hay Gordon has, in effect, had to live with the stigma of guilt. It is a matter of evidence and a matter of judgment whether he committed the act--of killing the young Miss Curran--in the 1950s. It is also a matter of evidence and a matter of judgment whether, if he did so, he was deficient in mental capacity when he committed the offence.
Mr. Forth:
I wish to be clear in my mind, which will help me in my contribution if am able to catch your eye, Mr. Deputy Speaker. My hon. and learned Friend is not saying, is he, that we can or should make any presumption about the innocence or guilt of any individual? I would not expect my hon. and learned Friend to make any sort of assumption. As I understand it, any individual, including the one named, has gone through due process and regrettably--it may not be the position in the case of Mr. Iain Hay Gordon--is presumed to be guilty until due process demonstrates otherwise. Surely my hon. and learned Friend is not basing his case in any way on any presumption that there has been some sort of miscarriage of justice.
Mr. Garnier:
My right hon. Friend is partly right. He is right not to assume that I am making a presumption. Instead, I am advancing an argument. I hope that it is one that commends itself to the hon. Member for Sunderland, South. It is my belief that Mr. Iain Hay Gordon is being denied access to justice. Those who post-1964 or 1965 who--I use the language loosely--committed the act but were insane at the time have access to the Court of Appeal criminal division. Now, since the passing of legislation under the Conservative Government, they have access to the Criminal Cases Review Commission. However, the defendant in the Northern Ireland case does not.
It seems unjust and unfair that as a result of a legislative error in 1964, Mr. Iain Hay Gordon, who I understand is in his early 70s--
Mr. Garnier:
I think that he was about 21 at the time. He has had to live right through to the end of the century believing in any event that he was innocent of the crime. On top of that, he has had to bear the baggage of being publicly considered to have been insane. It is bad enough to be unfairly convicted of a criminal offence as serious as murder. To be excused for what he did because he is said by the courts to have been insane must be doubly anxious-making. On top of that, this poor man has been denied access to appeal proceedings, simply because the 1964 legislation did not contain about half a dozen words.
In my view--my right hon. Friend may take an entirely different view for legitimate reasons that he may expound to the House--and from where I stand, I do not consider what has happened to be right, and I want to do something to correct the position.
Mr. Forth:
My hon. and learned Friend has referred to the stigma of insanity. Surely we cannot have it both ways. If we assume--I may wish to challenge this if I am given the opportunity to do so--that insanity is an exculpatory or mitigating factor, which I have always had doubt about, and in a peculiar way the accused receives the benefit of that, which in the days of capital punishment would have been a benefit, very dramatically, can we at the same time regard insanity as a stigma? After all, it has been used as a reason for not blaming somebody. Is my hon. and learned Friend in any way trying to have it both ways?
Mrs. Maria Fyfe (Glasgow, Maryhill):
On a point of order, Mr. Deputy Speaker. The purpose of the Bill is to put right an unintentional fault in the law. It has nothing to do with whether my constituent, Iain Hay Gordon, was guilty of the offence or whether he has or has not been insane at any time. The Bill will put right a fault in the law, and that is what we are trying to do. I look forward to our doing it.
Mr. Deputy Speaker:
We cannot have a general debate about insanity. However, the case of Mr. Iain Hay Gordon has been referred to in the explanatory notes and the hon. and learned Member for Harborough (Mr. Garnier) is able to rebut or support the intervention of the right hon. Member for Bromley and Chislehurst (Mr. Forth).
Mr. Garnier:
I can well understand the frustration of the hon. Member for Glasgow, Maryhill (Mrs. Fyfe). As she says, Iain Hay Gordon is one of her constituents, and I would think that the Bill is supported by the vast majority of hon. Members. It has been supported by all parties and by the retired Law Lord, Lord Ackner, in the other place. I know exactly where the hon. Lady is coming from. I entirely sympathise with the sense of frustration that I detect across the Chamber.
Mr. Forth:
On that point, will my hon. and learned Friend--
Mr. Garnier:
No. I would be most grateful to my right hon. Friend if he were a little patient. I want to deal with his point about stigma. I hope that my dealing with it will assist us in our deliberations and persuade those who are reluctant to give the Bill a fair passage that there are good grounds for taking a different view.
I do not want to go into general emotions or whether it is a proper matter for sympathy if someone is declared to be insane in respect of a criminal act. That is not my case. There are many things in this life that bring with them no moral opprobrium.
Let us assume that a woman is falsely accused of having been raped. Rape is a hideous crime and the woman can bear no blame. Yet if a woman is falsely accused of being the victim of rape, it is none the less defamatory. I have only to remind my right hon. Friend of the famous libel case in the 1920s of Princess Yusupov
against MGM, in which the widow of the young Russian prince, who was falsely portrayed in a film about Rasputin as being defiled by him, recovered what in those days was a huge sum in damages.
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