Clause
22
Imposition
of unpaid work requirement for breach of community
order
Mr.
Burrowes:
I beg to move amendment No. 89, in
clause 22, page 16, line 35, leave
out ‘20’ and insert
‘50’.
The
Chairman:
With this it will be convenient to discuss the
following:
Amendment
No. 90, in clause 22, page 16, line 35,
leave out ‘20’ and insert
‘45’.
Amendment
No. 91, in clause 22, page 16, line 35,
leave out ‘20’ and insert
‘35’.
Amendment
No. 92, in clause 22, page 16, line 35,
leave out ‘20’ and insert ‘30’.
Amendment No. 93, in
clause 22, page 16, line 35, leave out
‘20’ and insert
‘25’.
Amendment
No. 94, in clause 22, page 16, line 43,
leave out ‘20’ and insert
‘50’.
Amendment
No. 95, in clause 22, page 16, line 43,
leave out ‘20’ and insert
‘45’.
Amendment
No. 96, in clause 22, page 16, line 43,
leave out ‘20’ and insert
‘35’.
Amendment
No. 97, in clause 22, page 16, line 43,
leave out ‘20’ and insert
‘30’.
Amendment
No. 98, in clause 22, page 16, line 43,
leave out ‘20’ and insert
‘25’.
Clause
stand
part.
Mr.
Burrowes:
I do not propose to take too much of the
Committee’s time on these amendments, whose purpose is to probe
the Government on the figures that they have chosen, which are
essentially to provide an alternative to a requirement of 40 hours of
unpaid work and substitute 20 where there has been a breach of a
community
order.
Mr.
Hanson:
As a
minimum.
Mr.
Burrowes:
That is quite right. The point of the amendments
is to consider a sliding scale and whether that minimum could be set on
the sliding scale between 20 and 50. Without getting too wrapped up in
the individual numbers, could there be more flexibility explicit in the
Bill to ensure that magistrates do not feel that they have to work to a
prescribed level when dealing with a breach of a community order? That
is the point of the amendments.
Let me turn now to the stand
part debate. The concern is about dealing with defendants who have
breached the community order and the need to impose an unpaid work
requirement. Such people, who would no doubt often have a
rehabilitation order imposed on them rather than a community punishment
order, may not be suitable for unpaid work when that order is made.
They might have health issues, or they may be an addict whose probation
officer has determined that they are unsuitable for unpaid work. They
would come before the magistrates after breaching the community order
and, on the face of it, would not be eligible for the imposition of
unpaid work. The concern is about whether the clause would impose an
inappropriate sentence on those defendants.
I would also like the Minister
to consider the question of flexibility. Magistrates might often want,
not always as a matter of compulsion, to impose an additional penalty
when there is a breach. Will the Minister also consider the unusual
circumstances in which an order might break down through no fault of
the defendant beyond a technical non-compliance? There might be a need
to consider discretion.
5.15
pm
Mr.
Heath:
As the hon. Gentleman knows, I have not often
departed from much of what he has had to say. It
seems, however, that his amendments would do the
opposite of what he hopes that they would achieve. Do they not reduce
the discretion available to the court by inserting a higher figure for
the minimum work requirement
that the magistrates court can impose? Perhaps I have misread the
provisions of the original clause, but that was certainly the
impression that I was
given.
Mr.
Burrowes:
I am grateful for the
intervention, which enables me to clarify. The purpose of the
amendment, which could perhaps be better drafted, is to ensure
flexibility in the numbers for the hours of unpaid work that are
available. I wanted to draw out a comment from the Minister about why
the Government have settled on 20 as a minimum, rather than another
number, and to make the more general point about the suitability of
such an order in some
circumstances.
Mr.
Hanson:
The clause attempts to set the minimum
number of hours that may be imposed as a penalty when
an offender breaches a community order. At the moment, the minimum
figure is 40 hours. The Bill would set a minimum of 20 hours, while the
amendments range from 20 to 50, which is above the above the current
minimum.
The
minimum of 40 hours that can be imposed as a penalty is, in some cases,
too severe a response. I have attempted to take the approach that a
minimum of 20 hours will be examined by the courts in the event of a
breach. There is a precedent for 20 hours. Section 300 and schedule 31
of the Criminal Justice Act 2003 allow unpaid work of at least 20 hours
to be imposed for fine default as an alternative to committal to
prison. We have tried to establish that baseline, linked to the
2003 Act.
The amendments would replace
the proposed 20 hours with a larger figure. In some cases, they would
increase the current minimum of 40 hours and, in others, they would
decrease it. I believe that 20 hours is a fair minimum. It could
obviously be increased at the discretion of the sentencers. The new
minimum will be a far better figure in terms of the fairness of the
penalty than the current minimum of 40 hours.
We are attempting to examine
this in detail and the current minimum applies only to those community
orders that do not already have an unpaid work requirement. Where there
is such a requirement, there is no minimum to the amount of unpaid work
that may be added for the breach. The danger is that, where a court
feels that adding 40 hours is too much, it may instead resentence the
offender, possibly even to a short period of custody. My intention is
reduce the minimum to 20 hours. I ask the hon. Gentleman to reflect on
whether he wants to have a different minimum and whether in reality he
wants to increase the minimum from 40 hours to 50 hours. Having got to
know him over the last few weeks, I suspect that he would not wish to
do that. I urge him to accept our minimum of 20 hours and withdraw his
amendment
accordingly.
Mr.
Burrowes:
Having heard the rationale for 20 hours, I will
not press the amendment. However, I ask the Minister to respond at some
point to our concerns about the imposition of unpaid work requirements
on those defendants who have already been found not to be suitable for
such unpaid work, which led to the original imposition of a
rehabilitation order. There is a concern that this order should not set
up claimants to fail. That important flexibility is needed within the
system. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
22 ordered to stand part of the
Bill.
Clause 23
ordered to stand part of the Bill.
Schedule
5
Youth
default orders: modification of provisions applying to youth
rehabilitation
orders
Amendments
made: No. 49, in schedule 5, page 155,
line 7, leave out ‘“convicted”’ and
insert
‘“conviction”’.
No.
50, in
schedule 5, page 155, line 17,
leave out ‘and’ and
insert—
‘(aa) in paragraph
(b), for the words following “conviction” there were
substituted “must be, in the case of an amount in default which
is specified in the first column of the following Table, not more than
the number of hours set out opposite that amount in the second
column.
|
TABLE
|
|
Amount
|
Number
of
hours
|
|
An
amount not exceeding
£250
|
8
|
|
An
amount exceeding £250 but not exceeding
£500
|
14
|
|
An
amount exceeding
£500
|
24”,’.
|
No.
51, in
schedule 5, page 155, line 18, leave
out ‘18”’ and insert
‘12”’.
No.
52, in
schedule 5, page 155, line 26, leave
out ‘12’ and insert
‘10’.
No.
53, in
schedule 5, page 155, line 28, leave
out ‘16”’ and insert
‘12”’.—[Mr.
Hanson.]
Schedule
5, as amended, agreed
to.
Clauses 24
and 25 ordered to stand part of the
Bill.
Clause
26
Appeals
against
conviction
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
I beg to move amendment No. 207, in
clause 26, page 19, leave out lines 33 to
38 and insert—
‘“(1A)
For the purposes of subsection (1)(a), the conviction is not unsafe if
the Court think that there is no reasonable doubt about the
appellant’s guilt.
(1B)
Subsection (1A) does not require the Court to dismiss the appeal if
they think that it would seriously undermine the proper administration
of justice to allow the conviction to stand.”
’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 100, in clause 26,
page 19, line 34, at end
insert
‘and they have a
certificate from the trial judge confirming that the evidence heard by
him and the jury was sufficient to prove the prosecution case and that
he had admitted and the jury had considered, and been directed by him
in relation to, the relevance of any evidence of the procedural or
other
misconduct.’.
Government
amendments Nos. 208 and
209.
Amendment No.
101, in clause 26, page 20, leave out line
14 and add
‘may, as the Court think fit in
the interests of justice in that case, either direct that there be a
retrial or that the appellant be
acquitted.”’.
Amendment No. 102, in
clause 26, page 20, line 14, at end
add
‘, who
must initiate or not initiate such criminal or civil proceedings (or
both) as he thinks best suit the justice of the case (taking into
account the impact on the victim of the offence or his family of his
decision either to proceed or not) and which decision either to proceed
or not will provide the most suitable redress to the subject of such
misconduct, deter any such misconduct in the future and restore public
confidence in the criminal justice
system.”’.
Clause
stand part.
Government
amendment No. 210
Government new clause
28—Power of Court Of Appeal to disregard developments in the
law—
‘(1) The Criminal
Appeal Act 1968 (c. 19) is amended as
follows.
(2) In section 2
(appeals against conviction), after subsection (1B) (as inserted by
section 26(2))
insert—
“(1C) In
determining for the purposes of subsection (1)(a) whether the
conviction is unsafe the Court may, if they think it appropriate in all
the circumstances of the case, disregard any development in the law
since the date of the
conviction.”
(3) In
section 13 (disposal of appeals against verdict of not guilty by reason
of insanity), after subsection (1B) (as inserted by section 26(2A))
insert—
“(1C) In
determining for the purposes of subsection (1)(a) whether the verdict
is unsafe the Court may, if they think it appropriate in all the
circumstances of the case, disregard any development in the law since
the date of the
verdict.”’.
(4)
In section 16 (disposal of appeals against finding of disability),
after subsection (1B) (as inserted by section 26(2B))
insert—
“(1C)
In determining for the purposes of subsection (1)(a) whether a finding
is unsafe the Court may, if they think it appropriate in all the
circumstances of the case, disregard any development in the law since
the date of the
finding.”
Amendment (a)
to new clause 28, in subsection (2), after ‘case’,
insert
‘and are satisfied that it would not
give rise to substantial
injustice’.
Government
new clause 29—Meaning of unsafe: Northern
Ireland.
Government
new clause 30—Power of Court of Appeal to disregard
developments in the law: Northern
Ireland.
Maria
Eagle:
It is quite a relief after this length of time
finally to be able to welcome you to the Chair, Mr.
Cook. You have been here for some time and I feel
that I have neglected the courtesies, as it were. It is only because I
have not managed to get to my feet yet. Now that I am on my feet, it
might be some time before my right hon. Friend the Minister of State,
Ministry of Justice and my hon. Friend the Home Office Minister get to
do their bit. None the less, the theatrical profession always thinks
that delayed entrances have something to be said for them. We will just
have to see whether the Committee agrees with that by the time we get
to the end of this group of amendments. At least I hope that the
Committee will be glad that we have managed to move up a group. I hope
that the hon. and learned Member for Harborough is happy to acknowledge
that we are trying to be as flexible as possible even if all of our
notes are not always available.
In respect of these amendments,
the Committee will recall the extensive debate about quashing
convictions at the beginning of the Public Bill procedure. Indeed an
extensive amount of consultation and thought went
into those areas long before either I or my right hon. Friend came into
the Department. None the less, with Government amendment No. 207, which
I am pleased to be able to move, we are now able to come to the
Government’s considered view of how we ought to go forward. I
look forward to debating with members of the Committee and others to
see whether they think that we have got it right and also to dealing
with the other amendments that have been tabled to deal with these
issues. The
policy that clause 26 seeks to reflect is that it is not right that the
Court of Appeal should be obliged to quash convictions as unsafe
because of procedural irregularities when there is no doubt that the
appellant was guilty of the offence. That is the mischief that we are
trying to deal with in respect of these points. Our objective is to
ensure that the appellant’s right to due process of law does not
automatically override the need to ensure that appellants who are
plainly guilty remain convicted. As the Secretary of State for Justice
and Lord Chancellor said on Second Reading, such a change requires only
a small adjustment to the law. We are not seeking to imply any
criticism of the Court of Appeal. His statement on Second Reading
reflected a change of view by the Government in that we agree on
reflection that the convention exception, which is currently in new
subsection (1B) as it stands, does not go far enough in providing that
extra protection. We need to ensure that new subsection (1A) does not
prevent the court from allowing an appeal even when the
appellant’s guilt is not in doubt and when there has been
serious misconduct by the investigating or prosecuting authorities. It
is with that aim in mind that we have tabled Government amendment No.
207.
Government
amendment No. 207 amends new subsections (1A) and (1B). The revised
version of new subsection (1B) ensures that the Court of Appeal retains
a discretion to allow an appeal if it thinks that it would seriously
undermine the proper administration of justice to allow the conviction
to stand. That is a change from the current wording that the Committee
members will see in the Bill as published.
Amendment No. 207 provides for
a wider exception than the published new subsection (1B) in the Bill,
so it impinges more upon the operation of new subsection (1A). We
believe, however, that that will cover all the circumstances that will
be caught by the existing convention exception as it is set out in new
subsection (1B) in the Bill, but it will go further, allowing
convictions to be quashed when there has been serious misconduct by the
investigating or prosecuting authorities, and we are back to the
Mullen-type cases that we had a debate about earlier.
[Interruption.] The hon. Member for Somerton and Frome sounds
like an old record because I have heard him say it
before.
Mr.
Burrowes:
How many cases are we dealing with for the
Government to seek to change the status
quo?
5.30
pm
Maria
Eagle:
There is no doubt about the fact that it is a small
number of cases. They are the kind of cases that can significantly
damage the reputation of the criminal justice system as a whole if they
are allowed to proceed as they have in the past with convictions of the
plainly and incontrovertibly guilty being quashed at a later date. As I
said at the beginning of my remarks,
that is the mischief that the clause and these
amendments to the clause seek to address. That has been the case all
the way through the consultations that have taken place, resulting in
the clause as it was originally drafted and in the changes that we are
now proposing.
It is
not a question of there being thousands of cases affected by this
issue. Only a small number of cases are affected, but they are cases
that, if they are allowed to stand—as the current law suggests
they would—could do a disproportionate amount of damage to the
reputation of the criminal justice
system.
Mr.
Burrowes:
On the subject of the number of cases, the
consultation paper on the regulatory impact
assessment for quashing convictions says that the potential number of
individual convictions affected before the new amendments will be very
small, probably fewer than 20 each year. If the new amendments are
made, would even fewer cases be
affected?
Maria
Eagle:
The new amendments would give the Court a wider
discretion than was the case in the Bill originally. So it would be for
the judges and justices to consider the individual circumstances of the
cases that come up. Nevertheless, a small number of cases would be
affected—perhaps fewer than 20 or slightly more. However, given
that the discretion is wider, it would be for the judges to decide, in
the appropriate circumstances, whether to quash a conviction, even
though the person is plainly guilty, or whether they feel that that
conviction can still stand. In any event, we are talking about a small
number of cases, but cases that, as I have said, can do a great deal of
damage to the reputation of the criminal justice system if they
continue. If we did not believe that to be the case, we would not seek
to make the changes that are in the clause and we would not have had
the consultations that we have.
Amendment No. 207 would also
replace new subsection (1A). The revised version is designed to clarify
that the Court of Appeal is a court of review, which we all know it is,
and is not required to decide afresh whether it is satisfied of the
appellant’s guilt. So, instead of the test used in the present
subsection—that the Court is satisfied that the appellant is
guilty, which might give rise to the view that it has to retry the case
or be satisfied of the facts, as was the first instance
court—new subsection (1A) says that the Court must say that it
thinks there is no reasonable doubt about the appellant’s guilt.
New subsection (1A) does not have the ambiguity of the existing draft.
We hope that that clarifies
matters.
Amendments
Nos. 208 and 209 are consequential amendments, to apply the changes
effected by clause 26 to two other provisions, namely sections 13 and
16 of the Criminal Appeal Act 1968, which also make use of the same
test of unsafety. New clause 29 is the Northern Ireland equivalent of
clause 26. We are dealing with new clause 28 now, rather than at the
end of proceedings.
Mr.
Heath:
Why was the decision taken that this measure now
needs to be extended to Northern Ireland, when that was not the view
when the Bill was first drafted?
Maria
Eagle:
In my experience, that is normally a matter of
consultation with the jurisdiction and establishing whether people
there want this measure to apply. One would expect that, after those
consultations, the Northern Ireland criminal justice system suggested
that it would want the clauses to apply there. I imagine that that is
why new clause 29 is here.
Mr.
Heath:
Will the Minister confirm that the Northern Ireland
Human Rights Commission said that part 3 does not extend to Northern
Ireland and that it welcomed that?
Maria
Eagle:
I do not have any comment to make about what the
Northern Ireland Human Rights Commission has said. It may well have
said that, but I am not responsible for the criminal justice system in
Northern Ireland and we are including the new clauses that relate to
Northern Ireland because the Northern Ireland jurisdiction has asked us
to save it the difficulty of finding other vehicles to do so. It
obviously sees the sense of these measures in respect of Northern
Ireland and we are merely acceding to those requests. If I am wrong
about that—I suspect that I am not—I will obviously get
back to the hon. Gentleman, but that is the case as I understand
it.
Mr.
Garnier:
I am provoked by the intervention to look at
clause 127, which deals with the extent of the Bill. I may not be
reading it carefully enough, but I cannot see a reference to clause 26
in clause 127 that extends to Northern Ireland. I may have got that
completely wrong.
Maria
Eagle:
I shall have to rely on others to check that, but I
hear what the hon. and learned Gentleman says. I hope that he will bear
in mind the fact that I was not anticipating dealing with new clause 28
and all of these matters at this point. I hope that he will give me a
certain amount of leeway.
New clause 28 amends section 2
of the Criminal Appeal Act 1968, and gives the Court of Appeal the
discretion to disregard developments in the law since the date of
conviction. During the various consultations on what has turned into
clause 26, members of the Committee will be aware that it was brought
to the Government’s attention that there was a lacuna in the
current legislation, which new clause 28 will fill.
The matter arises from the
judgments in the cases of R v. Cottrell and R v.
Fletcher. In those instances, two appellants who had clearly
committed acts of unlawful sexual intercourse with a girl under the age
of 16, could not be prosecuted for that offence because a statutory
time limit had applied at the time at which they were prosecuted. In
accordance with the usual practice at the time, they were instead
charged with indecent assault, to which the time limit did not apply,
and were convicted.
Subsequently, the House of
Lords decided that it was impermissible to charge indecent assault in
such circumstances, and after that decision, the Court of Appeal had no
option but to consider the law in its present state when one of these
cases was referred. It was reluctant to quash a conviction in which the
appellant was properly convicted under the law as it was when the person
was tried, and would normally avoid having to do so by refusing leave
to appeal out of time. However, there are some circumstances in which a
case that is referred to the Court of Appeal does not need leave,
particularly where those cases are referred by the Criminal Cases
Review Commission. In
this particular case, the Court was obliged to hear the appeal and
obliged to quash the conviction, even though it was apparent and
certain that the appellant had been properly convicted of serious
offences. That is what new clause 28 seeks to deal with. Members of the
senior judiciary brought the matter to the attention of the Government.
It is clearly something that needs to be dealt with and new clause 28
is our attempt to do so.
The Government agree
with the senior judiciary that this matter must be dealt with. The
Criminal Cases Review Commission does not disagree with the view that
this is an unsatisfactory state of affairs. Our preferred solution is
to give the Court of Appeal the discretion to disregard developments in
the law since the date of conviction, and that is the effect of new
clause 28.
The hon.
and learned Member for Harborough has added amendment (a) to new clause
28, and he has tabled other amendments which, with your permission
Mr. Cook, we will deal with once he has had a chance to set
out his stall.
New
clause 30 applies those matters to Northern Ireland in accordance with
the wishes of those who look after the criminal justice system in that
jurisdiction. With those few remarks, I commend amendment No. 207 to
the
Committee.
Mr.
Garnier:
In resisting the amendments I do not think that I
can be quite as brief as the Minister, because I shall also try to
persuade the Committee of the good sense of the Opposition’s
amendments. I regret holding hon. Members up if they have other things
to do, but we are coming to quite an important aspect of the powers of
the criminal justice system and of the way in which the Court of Appeal
criminal division deals with matters before it.
I am very much reliant on
advice that I have received from others on this subject. Although I am
now in what I think is my 35th year at the Bar, I do not have great
experience of the Court of Appeal criminal division. Actually, it might
be an exaggeration to say that I am in my 35th year. I was called in
1976, so I am in my 32nd year. My practice has been predominantly in
the civil jurisdiction dealing with media law, confidence, defamation
and so on. However, I have a little understanding of what goes on in
the Court of Appeal, and some understanding of what goes on in the
criminal courts through having sat as a recorder for the past 10 years.
Nevertheless, I make no secret of the fact that I shall be relying
heavily on the works of Professor J. R. Spencer, who is attached to
Cambridge university and who attends frequently at the Judicial Studies
Board lectures and refresher courses that I too attend. I have not only
read what he has to say, I have on many occasions in the past 10 years
had the benefit of listening to him speak on Government proposals for
amending the criminal law in one form or another. He has written quite
extensively and thoroughly on the subject that is dealt with by this
part of the Bill. As
we all know, in September 2006 the Government
announced their intention to change the law so that, in future, the
Court of Appeal would no longer be able to quash convictions on purely
procedural grounds if it was sure that the defendant was factually
guilty. Last summer, the Government issued what they were pleased to
call a consultation paper. The paper was fairly brief, and made it
quite clear that, although the Government were interested in hearing
what people had to say about how to achieve the aims that are reflected
in the new clause, they were not consulting on the aims themselves or
on whether the law should be changed. The consultation was somewhat
partial, therefore.
The paper
said that the present system risks outcomes that are unacceptable to
the law-abiding majority. As the Government were committed to
rebalancing the criminal justice system in favour of the victim and the
law-abiding majority, they said that the law had to be changed. The
depth of research underlying the paper was clear from the
Government’s repeated references to the work of a wholly
non-existent body, called the 1985 royal commission—an imaginary
amalgam, one presumes, of the 1981 Philips commission and the Runciman
commission of
1993.
Among
those who put forward views adverse to those of the Government were the
senior judiciary, the council of circuit judges, the Criminal Cases
Review Commission, the Law Society, the Criminal Bar Association,
Justice and Liberty. I shall list the objections made by that quite
powerful group of bodies, which I would have thought were worth
listening to.
First,
there was a failure to recognise that the criminal appeal process
exists not only to ensure that the factually innocent are not punished
but to uphold the rule of law. Thus, it was said, the function of
criminal appeals is not just to see that, in a given case, the right
result is reached, but to ensure that the law of the land in general
and the rules of criminal procedure and evidence in particular are
respected and properly applied. Because of that, it is inevitable that
the Court of Appeal must sometimes quash convictions that are tainted
by grave breaches of the law or serious failures to apply the
rules, irrespective of the factual guilt or innocence of the accused.
There are two good reasons for that: one theoretical and one
practical.
5.45
pm
The
theoretical reason is that a criminal conviction is acceptable only if
it carries moral authority and a decision reached in defiance of the
basic rules that society prescribes for criminal investigations and
trials does not. The practical reason is that, if convictions can be
upheld where the authorities have flouted the basic rules, that will
undermine the self-restraint that we expect the authorities to show in
keeping to them. If the police know that if they break the rules the
resulting conviction will be appeal-proof, as long as nobody finds out
until afterwards, that would—to use the Government’s
jargon—send a signal that breaking rules can
pay.
The second
objection from the bodies I have mentioned is that the proposal is
unnecessary because it fails to understand the way in which the rules
of
criminal appeal currently operate. Behind the proposal
is the notion that, as the law now stands, defendants
who are clearly guilty regularly escape punishment because the Court of
Appeal quashes their conviction on account of footling procedural
irregularities. However, that is not so. For most procedural
irregularities the Court of Appeal will uphold the conviction if it is
convinced that the defendant is really guilty and would still have been
convicted, even if the irregularity had not taken
place. There is plenty
of case law making it clear that the Court of Appeal will quash the
conviction of a defendant who is plainly guilty in respect of only the
most serious procedural irregularities. In the comparatively rare cases
where the Court of Appeal considers the procedural flaw too grave for
the conviction of a visibly guilty person to be allowed to stand, it
will usually order a retrial where, as is usually the case, a new trial
can cure the problem. The current law is not in need of change. I do
not say that out of complacency, but because an examination of the
issues underlying the Government’s proposals shows that they do
not stand up.
As a
matter of principle, it is right that some purely procedural
errors—as the Government calls them—should cause the
conviction to be quashed, irrespective of the defendant’s
factual guilt or innocence and, in some cases, it should not be
possible for the defendant to be retried. Having said that, the present
law is not free from difficulty, because neither statute nor case law,
nor legal writers, have laid down any clear rules to identify cases
that fall into either of those two categories. I accept that that
uncertainty is unsettling and probably helps to foster the false
impression about the operation of the current law that has led to the
Government introducing a Bill to change
it.
I want briefly to
set my concerns in context and mention how the Court of Criminal Appeal
has developed since the Criminal Appeal Act was passed in 1907, which
was the first time that the Court of Appeal could review convictions
and sentences based on this issue—or at all. Section 4(1) of
that Act
says:
“The
Court of Criminal Appeal on any such appeal against conviction shall
allow the appeal if they think that the verdict of the jury should be
set aside on the ground that it is unreasonable or cannot be supported
having regard to the evidence, or that the judgment of the court before
whom the appellant was convicted should be set aside on the ground of a
wrong decision of any question of law or that on any ground there was a
miscarriage of justice, and in any other case shall dismiss the
appeal:
Provided that
the court may, notwithstanding that they are of opinion that the point
raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if they consider that no substantial miscarriage of
justice has actually
occurred.”
That
provision was modified to some extent under the Criminal Appeal Act
1968, in which the Court was permitted to quash convictions for
failures of due process but which did not allow the Court of Appeal to
order a retrial. That modification was a response to some of the
difficult cases that the Court of Appeal had had to deal with over the
previous 50 or 60 years. On the one hand, the Appeal Court would
sometimes uphold convictions despite failures of due process that most
people would regard as fundamental. An example of a case where nowadays
we would think that the wrong result was arrived at occurred during the
first world war. A Chinese man with virtually no command of English had
no interpreter at the trial so was unable
to follow the proceedings. In the judgment, the Court of Appeal equated
the position of a defendant who was present but unable to understand
the proceedings with that of a defendant who was physically absent. It
stressed the great importance of providing interpreters for those who
were unable to follow spoken English. However, despite that endorsement
of a basic principle, the Court applied the proviso and affirmed the
conviction for murder because, as it said, if the evidence had been
translated to the appellant, the same verdict would inevitably have
followed. As a result, on 1 January 1916 the poor man was hanged at
Pentonville. It is
always said that another fundamental requirement of a trial is that the
judge who is trying the case should be impartial and unbiased. I do not
often speak ill of my profession, but this is an occasion to do so.
There was a case in 1969 when the Court of Appeal criminal division
refused to quash a conviction although the trial judge had demonstrated
his bias by saying in a loud voice, “Oh, God” when
defence counsel began his closing speech, and then by laying his
bewigged head down on his arms and making groaning noises while counsel
was trying to impress the jury. Surprisingly, the Court of Appeal
upheld the poor defendant’s
conviction.
At the
other end of the spectrum, appeal courts sometimes quash convictions
for minor procedural irregularities with the result that a defendant
who is probably guilty walks free. In the case of Hales, the Court of
Appeal quashed the defendant’s conviction for theft and the
15-month prison sentence consequent upon it because the sentence had
been pronounced when he was absent from the court, although he had been
present throughout the trial. In another case, the Court of Appeal
quashed the defendant’s conviction for dangerous driving and the
resulting prison sentence because the particulars of the offence as
stated in the indictment were that he
“drove a motor car recklessly or
at a speed or in a manner which was dangerous to the
public”.
That offended
the rule against duplicity, but most people would not have thought it
appropriate in justice to quash the
conviction.
The
position became even more muddled when the House of Lords Judicial
Committee started inventing a theory that certain procedural
irregularities had the effect of making the initial trial a nullity. It
was trying to find an inventive way to get through the problem that the
current laws relating to the Court of Appeal criminal division as
invented in 1907 presented, so it suggested that some procedural
irregularities led to the initial trial being void, as though it had
never occurred, and it ordered a retrial so that the retrial could cure
the irregularity in the first
trial.
Eventually, we
got to a position in 1964 such that the Criminal Appeal Act was amended
to give the Court power to order a retrial when it quashed a conviction
because new evidence had come to light, and then in 1988 Parliament
amended the Act again to give the Court of Appeal criminal division the
power to order a retrial when quashing the conviction for whatever
reason. The latest position for which figures are available is that in
2004 66 cases were ordered to be retried on the Court of Appeal
quashing a conviction on account of procedural
irregularity.
The Runciman report was produced
in 1995, and there was a further change when Parliament amended the Act
to state that the Court of
Appeal
“shall allow an
appeal against conviction if they think that the conviction is unsafe;
and...shall dismiss such an appeal in any other
case.”
It
is thought that when drafting that the Home Office was trying to
prevent people who were plainly guilty from getting away with it on
procedural grounds. Lord Taylor, then the Lord Chief Justice, said in
the House of Lords, “It’s business as usual,
chaps.” That is how the Court of Appeal and the Judicial
Committee interpreted that amendment to the
law.
To achieve
clarity, I shall consider which due process errors should automatically
justify the quashing of a conviction. Professor Spencer lists a number
of such errors, including, first, cases in
which
“the court had no
jurisdiction to try the
offence”.
An obvious
example is one in which the judge trying the case is not a judge at
all. The second error applies to cases in which
“the court below fundamentally
misapplied the substantive criminal
law”.
In such cases, the
defendant was convicted of an offence of which he was not guilty and
was essentially put before the jury for an offence that did not exist.
The third error applies in cases in
which
“the rules of
natural justice were
broken”.
There are two
rules of natural justice. I am sorry to resort to legal Latin, but the
first is nemo judex in sua causa. That is to say, no matter how clear a
person’s guilt, if the judge had a particular reason to be
biased or appeared to demonstrate bias, one of the rules of natural
justice has been
breached.
The other
rule is that people should not be convicted without having an
opportunity to defend themselves and advance a case. That can be
amusing in some cases, but rather sad in others. In 1988, a judge
refused to allow a defendant—a male transvestite—to take
part in the proceedings unless he wore men’s clothes. The
defendant did not want to wear men’s clothes because he did not
feel comfortable in them, and was convicted because he refused to
appear in court. [
Interruption.
] It is funny in
one sense, but on the other hand it is perfectly obvious that people
should not be convicted in such
conditions.
The fourth
category that Professor Spencer highlights
is
“disregard of other
procedural rules of major importance that exist for the particular
protection of the
defendant”.
I
will not go into a long explanation of those rules,
but they are obvious and recognisable. Fifthly, he highlights
the
“existence of some
formal bar to
prosecution”.
which
applies, for example, if the bringing of the prosecution is
time-barred. Finally, there could
be:
“gross misconduct in
the course of investigating the offence, or preparing for the
trial”
I
want the Committee to consider under what circumstances the Court of
Appeal should be permitted to refuse to order a retrial where such
abuses. Professor Spencer says that he can see no reason in principle
for
refusing to order a retrial in any of the cases in the first four
categories. The only principle for refusing to order a retrial is what
might be called the penalty shoot-out theory of criminal procedure: the
notion that the prosecution is allowed only one shot at goal and if it
misses, for whatever reason, it is unfair to the defendant to let the
prosecution have another
go. If
that notion of criminal justice has any validity at all, it might
justify forbidding a retrial in cases where the prosecution is in some
way to blame for what has happened. However, it could hardly justify
the absence of a retrial in a case where the prosecution is blameless
and the failure of due process was the result of a bungle by the court.
In the light of the overriding objective of the new criminal procedure
rules, it is questionable whether the penalty shoot-out theory is
tenable even when the prosecution has
blundered.
Professor
Spencer suggests that a retrial should be impossible only in cases that
conform to his fifth and sixth criteria, in which there is some formal
bar to prosecution and gross misconduct in the course of investigating
the offence or preparing for the trial. In those situations, the
prosecution should not have taken place at all: if the lower court had
done its job properly, it would have stopped the proceedings. If that
is the root of the problem, it obviously cannot be cured by allowing
the prosecution to continue. An example of the final category is the
case of Mullen, which is the only one that the Government have been
able to come up with. That decision seems to form the basis of their
argument in favour of messing around even further with the powers of
the Court of Appeal.
6
pm
I am sorry not
to have compressed Professor Spencer’s argument as fluently or
as comprehensively as he might have wished. However, it is important
that we pay particular attention to people who have spent their
academic lives considering such issues: they have looked at case law
and the way in which the Court of Appeal criminal division has
developed over the past 100 years. For the Government to want to change
that on the back of one case—the Mullen case—in which the
defendant was unlawfully rendered, if that is the right expression,
from Zimbabwe to this country to face trial, because the Government
either could not be bothered or did not want to become engaged in an
extradition hearing in Zimbabwe is pretty
appalling.
Before
concluding, I wish to deal with the point at issue in Government new
clause 28. The Minister explained it, but in amendment (a), we are
trying to make it clearer. We do not have the same fundamental
objections to new clause 28 as we do to clause 26 as a whole, but it is
not drafted as carefully as it could be. I suspect that Ministers have
received the a copy of the letter dated 24 October that I have received
from Professor Graham Zellick, chairman of the Criminal Cases Review
Commission. He sets out in delightfully simple terms why he thinks that
the current Government new clause is not quite right. He makes it clear
that the commission
“does
not oppose this amendment in
principle,”—
nor
do we—
“but we do
regard its drafting as seriously defective. In our view, the clause
should make explicit reference to the substantial injustice test which
has featured over the years in case law, so that the clause would then
read as follows”.
I have copied his proposed amendment. I
adopt his reasons for the proposal and support them. He
said:
“The
present wording gives the Court no guidance whatever as to the
circumstances in which a development in the common law may be
disregarded and it does not follow that the statutory provision is to
be applied in line with the Court’s long-established practice in
respect of applications for leave to appeal out of time based on a
change in the law.
The
absence of the link to substantial injustice means that change of law
could be disregarded in cases where in our view it should be taken into
account and we believe that it is right for Parliament to give this
guidance to the judges of the Criminal Division and thereby limit the
scope of the
discretion.
Many
judges sit in the Criminal Division who are not particularly
experienced in criminal law and may not be fully aware of the
background to this
amendment.
The
inclusion of a reference to ‘substantial injustice’
should prompt the Court over time to elucidate and clarify its meaning
which is essential if a provision of such importance is to be
understood by all those affected by it or who have to deal with
it.
The Criminal Cases
Review Commission, in particular, needs to know the basis on which
legal developments will be disregarded if it is to be able properly and
sensibly to apply the ‘real possibility’ test in the
Criminal Appeal
Act.
The absence of a
reference to substantial injustice and the enactment of the clause in
its present open-ended form would preclude or seriously inhibit the
House of
Lords”—
Judicial
Committee, I
add—
“from ever
being able to offer guidance as to the proper scope of the new
clause.
It is true
that the expression ‘substantial injustice’ even in this
context suffers from some uncertainty, but that is a reason for
including it in the statutory provision so that it can be adequately
defined or shaped by the Court in the light of past experience and
future cases. It is not a reason for a clause that is wholly destitute
of guidance.”
Professor Zellick and the CCRC
remain puzzled that the Government, despite being told about those
arguments in advance of drafting their new clause, have not found them
acceptable. There are thus two big issues. The first concerns new
clause 28, and the secondly the approach to the powers of the Court of
Appeal when dealing with appeals in criminal cases. I have relied, as I
have made clear, on the learning of Professor Spencer, but any mistakes
in recounting his arguments are mine, not his. If, in the unlikely
event that Professor Spencer reads the Committee Hansard, he
sees reference to his name and learning, he should not feel in the
least bit embarrassed if he wishes to write to me and say that I have
got it all wrong. However, I do not think that I have. Where we are
going wrong is in introducing the provisions simply on the basis of one
case and on an apparent appeal to populism to ensure that people do not
leave court after a successful appeal even though they are, in fact,
guilty. It is a bigger issue than that.
A court of criminal appeal has
a public and a private purpose: the public purpose of ensuring that
people are not convicted improperly, and that the authorities, whether
they are the prosecutors, police or the court system, do not condone
and repeat bad behaviour; and the private purpose of dealing with the
individual appeal, which is of particular interest to the appellant. I
urge the Government to pay attention to the great weight of authority
underlying the criticism in the responses to the consultation paper. I
doubt very much if anybody wrote to the Government to say, “What
a good idea this is, we can’t wait for it to come
into
force.” All the criticism went in the other direction, but the
Government ignored it. No doubt they had their reasons for doing
so. Amendment No. 100
may be up in the air, because the Government have amended, or hope to
amend, the relevant part of the Bill. To some extent, but not as much
as I should like, the Bill upholds the difference between the Court of
Appeal and the court of first instance by requiring that the Court of
Appeal should receive a certificate from the trial judge confirming
that the evidence that he and the jury heard was sufficient to prove
the prosecution case, and that he had admitted—and the jury had
considered and been directed by him on the matter—the relevance
of any evidence of procedural or other misconduct. The Court of Appeal
must have evidence before then that the question of procedural
irregularity was dealt with, and not simply kept from the court or
brushed under the carpet.
Amendment
Nos. 101 and 102 touch on clause 26 (5), which would insert new section
30B into the Criminal Appeal Act 1968 and
states:
“If it
appears to the Court of Appeal, in determining an appeal under this
Part, that there has been serious misconduct by any person involved in
the investigation or prosecution of the offence the Court may refer the
matter to the Attorney
General.””
We wish
to delete the words,
“may refer the matter to the
Attorney General”,
and
replace them with
“may,
as the Court think fit in the interests of justice in that case, either
direct that there be a retrial or that the appellant be
acquitted.”
That would
reinforce the power of the Court of Appeal to order a retrial or to
acquit, rather than simply shifting the matter over to the
Attorney-General to deal with the misconduct in some other disciplinary
way, but without affecting the defendant’s right to a retrial or
to be acquitted.
Turning to amendment No. 102,
if the words,
“may refer
the matter to the Attorney
General”,
are left in the
Bill, we want to insert the words
“who must initiate or not initiate
such criminal or civil proceedings (or both) as he thinks best suit the
justice of the case (taking into account the impact on the victim of
the offence or his family of his decision either to proceed or not) and
which decision either to proceed or not will provide the most suitable
redress to the subject of such misconduct, deter any such misconduct in
the future and restore public confidence in the criminal justice
system.”
I have
taken a little while to set out my arguments and those that I have
borrowed from others. Given that the Government are making a
fundamental change—and not a very good one—to the
criminal Court of Appeal, it is important that the arguments against
that change, which they have so far ignored, should be set out
extensively. I make no apology for doing so. If we are not successful
in resisting the Government in Committee or on the Floor of the House,
the other place will not feel in the least inhibited about doing the
right thing on clause 26.
The Bill has been bolted
together like some sort of Heath Robinson contraption. From time to
time, the Government think of something else to write about and stick
it into the Bill. On Second Reading, the Secretary of State revised his
initial views about what clause 26 should do, and now, in Committee,
the
Government are bolting on a complete rewrite of clause 26. If that is
how they want to proceed with making this legislation, Members
considering the Bill at later stages should not have any inhibitions
about undoing this bolt-on business and putting the law back where it
ought to
be.
Mr.
Heath:
I do not propose to take quite as long as the hon.
and learned Member for Harborough to make the case against the clause.
The proposal must have seemed like a good idea at the time to the
Government, but they have been trying to row back from it ever since,
because the arguments in favour of it do not stand up. They are now
attempting in their amendments to make partially digestible that which
is inedible.
The Lord
Chancellor made it plain on Second Reading that the clause has few
friends in his Department. He tried his best to suggest that there
might be a reason why it is necessary, but he could not come up with a
single concrete example of a case in which the discretion that is
currently available to the Court of Appeal is not sufficient to deal
with the supposed mischief that he described. Indeed, he went quite the
other way and made plain his view of the famous Mullen case. I teased
the Under-Secretary when she talked about Mullen and similar cases,
because we still do not know what the similar cases are. The Lord
Chancellor said that an egregious—I think that is the word he
used—abuse of process had occurred, that the Court of Appeal had
had to come to that decision, and that the right thing to do was to
free someone on appeal. There is a big question, therefore, about the
utility of clause
26.
6.15
pm
Having said
that, the Lord Chancellor did say that he would rewrite the clause and
come back with more acceptable proposals. I do not want to suggest that
he has not been faithful to at least part of that intention. Government
amendment No. 207 is an improvement—as far as it goes—on
the wording of the original clause 26. However, it still raises some
serious questions about what the Government are trying to do. Why do
they seek to fetter the discretion of the Court of Appeal and what will
the consequences
be?
The key operative
concession, if we can put it that way, is to downgrade the requirement
on the Court of Appeal so that it no longer needs to be
“satisfied that the appellant is
guilty of the
offence”.
The amendment
refers instead to there
being
“no reasonable
doubt about the appellant’s
guilt.”
I have to say
that that still puts the Court of Appeal in a position whereby it is
required to act as a court that is finding on fact, not just on the
legal position and potential abuse of process. That is
unsatisfactory.
New
subsection (1B), which Government amendment No. 207 would insert,
reads:
“Subsection
(1A) does not require the Court to dismiss the appeal if they think
that it would seriously undermine the proper administration of justice
to allow the conviction to
stand.”
Again, that asks
the Court to make a judgment about whether it would seriously undermine
the proper
administration of justice, rather than simply to take a view on whether
there had been an abuse of process that required it to find that the
original verdict was unsafe, and should therefore be overturned. Both
changes would leave the Court of Appeal in an unsatisfactory
position.
Mr.
Burrowes:
I certainly endorse the points that the hon.
Gentleman makes, particularly on the position in which the Court would
find itself when forming a view on the facts of the case. I am not sure
whether the Government intend to amend the explanatory notes, but
paragraph 228
states:
“It
would be for the Court to form their own view as to guilt on the
evidence available to them; where they were in any doubt the Court
would be under no obligation to seek to resolve it by calling for
further evidence.”
The
fundamental constitutional concern is that, in essence, the Court would
be encouraged to usurp the primary role of the jury in determining
guilt.
Mr.
Heath:
The hon. Gentleman is correct. That is precisely my
point. I think that that proposal fundamentally changes the nature of
the Court of Appeal. It is not a minor amendment to the Criminal Appeal
Act 1968, nor is it just a minor
“recalibration”—is that the word that the Lord
Chancellor used?
Mr.
Garnier:
He usually says “tidying
up”.
Mr.
Heath:
He does indeed. In this instance, however, I think
he used the word “recalibration”. That is not what the
measure does. It fundamentally changes the process of the courts and
the role of the Court of Appeal. On those grounds alone, it should be
resisted.
If the Lord
Chancellor’s purpose was simply to underline the discretion
already available to the Court, he could have done that without clause
26. I do not think that anything requires the Court of Appeal not to
take a sensible view about the safety of a conviction when making its
determination. No evidence has been adduced to suggest that that is
that case. What we are talking about is not asking the Court to act
differently, but creating yet another headline for the newspapers and
people with less understanding of the legal process to give the
impression that we are significantly shifting the way in which the
courts will work, but in the process undermining the legal system as we
know it. That is profoundly
dangerous.
I tested
the Under-Secretary of State for Justice on new clause 29, which was
originally in this group; it is not one that was added, Mr.
Cook, when you sensibly altered our proceedings. New clause 29 was
always in this group. It would extend these provisions on the Court of
Appeal to Northern Ireland. I wanted to test her on that because I have
the benefit of the Northern Ireland Human Rights Commission’s
briefing. The commission is not just another pressure group, which we
can safely disregard if we do not like what it says. It is a statutory
body that was set up under the Northern Ireland Act 1998 to review the
adequacy and effectiveness of Northern Ireland law and practice
relating to the protection of human rights. That is its sole purpose,
so what does it have to say about the provisions? Its briefing is
instructive, saying that
“Part 3 of the Bill does
not extend to Northern Ireland and the Commission welcomes that, view
of the concerns it expressed in October
2006.”
That is when the
commission responded to a consultation by the Northern Ireland Office
on the proposal before us. It
continues:
“The
Commission stressed at the time that any proposals for limiting the
independence of the Court to quash convictions would impact
fundamentally on the value given in the criminal justice system to
considerations of procedural
fairness.”
Maria
Eagle:
The hon. Gentleman will be aware that the Northern
Ireland Office sought to extend the provisions to Northern Ireland, and
will have taken full account of its stakeholders’ opinions. That
is not a job for me to do in the Ministry of Justice, so I can only
assume that the Northern Ireland Office consulted all its stakeholders,
including the commission, when coming to its views. The Ministry of
Justice and I as the Minister proposing the new clause are simply
seeking to do what the Northern Ireland Office has asked us to
do.
Mr.
Heath:
Precisely so. That is precisely my point. Here we
have the body charged with commentary on these
matters—establishing the rights and wrongs of a
case—being consulted by the Northern Ireland Office and
returning with a damning indictment on the Government’s
proposal. What is the reaction of the Northern Ireland Office? It
commissions the Under-Secretary of State for Justice to come to this
Committee to extend it anyway, because apparently it is not interested
in what the Northern Ireland Human Rights Commission
says.
Maria
Eagle:
I do not think it is fair of the hon. Gentleman to
say that the Northern Ireland Office takes no interest in what the
Commission said. It has a range of stakeholders and takes a balanced
view, as any Department would, having consulted on the right way
forward. It has made a decision, and it is unfair of the hon. Gentleman
to suggest that it asked for one view and then ignored
it.
Mr.
Heath:
I do not think I said that it asked for one view
and then ignored it. I said that it asked for the views of the body
that I believe has some importance in the context of Northern Ireland,
and chose not to accept its advice. I believe, therefore, that it is
perfectly proper for me to quote what it said about the
Government’s position in support of my position, because the
commission is so strongly in support. Paragraph 6 of its submission
states:
“Given
the exception of Northern Ireland from the scope of clause 26, the
Commission limits its comment on the matter to expressing its view
that, in terms of the values underpinning the legal traditions in UK
jurisdictions, any measure that tends to undermine the requirement for
procedural fairness in the trial process may threaten the presumption
of innocence, diminish confidence in the integrity of the courts, and
increase the likelihood and severity of miscarriages of
justice.”
That is a
potent argument against the Government’s
proposal.
I shall deal
quickly with new clauses 28 and 30, which deal with the Northern
Ireland extension, and amendment (a), tabled by the hon. and learned
Member for Harborough. He has quoted a letter from the chairman of the
Criminal Cases Review Commission. We have to use the wretched word
“stakeholder” again. What stakeholder is more important
in the particular case before us than the Criminal Cases Review
Commission, which is the only body that can actually deal with these
matters? The commission states that it understands and accepts what the
Government are proposing, but that the proposal is drafted so badly
that it needs revision. The hon. and learned Gentleman has put that
down as amendment (a)—a revision which the chairman of the
Criminal Cases Review Commission believes is essential to the proper
working of his commission and the process. How on earth
can the Government claim to have taken a reasoned and proper view of
the drafting of the amendment if they disregard the body that they
created and that they require to administer the consequences of the
legislation, when it says that it cannot work effectively without an
amendment? Again, the chairman of the commission’s comment is
pretty
damning:
“The
commission does not oppose this amendment in principle, but we do
regard its drafting as seriously
defective.”
In the terms
of the chairman of the commission, “seriously defective”
is about as strongly expressed as it is possible for it to be. Surely,
the Government ought to say, “Hang on a minute, perhaps we have
got this slightly wrong. We know what our intention is, but if the
Criminal Cases Review Commission says that this is ‘seriously
defective’, we ought to think again.” That would be the
sensible approach for them to take, but we have not heard that
recognition so far on the part of the
Department.
In
conclusion, I welcome the fact that the Government, in their amendments
to clause 26, have moved from their initial position, but to my mind no
justification has been established for the clause. I hope that I am
correct in understanding the hon. and learned Gentleman to have
indicated that he would seek to oppose, not amendment 207, but clause
stand part, because it is the clause that is the problem, not the
amendment. If he does so, I will certainly join him in opposing the
clause, because we have not yet heard any justification for this
fundamental change to the Court of Appeal and the legislation that
prescribes the way in which it works. We know that every respondent to
the Government has said that they are not convinced by the
Government’s case. I do not believe that, in their heart of
hearts, the Government want this measure either. It is left over from
the previous Administration. It would be better, and I think that face
would be preserved rather than lost in the process, if it were quietly
dropped.
Harry
Cohen (Leyton and Wanstead) (Lab): I want to take the
opportunity to put on the record the view of Liberty on this part of
the Bill. The organisation states
that:
“The
Government’s current proposals would prevent a conviction being
quashed where there has been serious abuse of process even where, once
quashed, the Court of Appeal would currently order a
retrial.”
Liberty
have made a good summary of the Government’s
position,
“the
Government’s policy position boils down to the following
argument:
‘to quash a conviction where there
is strong evidence of guilt, without ordering a retrial, will bring the
criminal justice system into disrepute, rather than protect its
integrity. According to that argument it is wrong to punish the public
and deny justice to the victim in this way; if the system or those who
operate it are at fault it is they and not the public which should be
punished or required to learn
lessons.’”
Liberty
goes on to say that in its view, the position is not as black and white
as that. It
states:
“In
reality, those cases in which this power to quash convictions is used
involve very serious failings either before or at trial, or serious
illegality on the part of the prosecution or police... Those who
enforce the law should also obey the law and should not benefit from
breaches of it. It would be contradictory for the state to take
advantage of a breach of the law which it itself has
committed.”
Liberty
continues:
“the power
for the Court to check serious illegality and abuse of process by the
Executive”
is an
important constitutional check on the Executive. It points
out:
“We are
concerned that, once the Court of Appeal’s power to quash a
conviction outright where there has been serious malpractice on the
part of state authorities is removed, the next step would be to take
that power away from the courts of first instance. The power to stay
proceedings as an abuse of process is an important constitutional
safeguard which should not be restricted or
removed.”
On that point,
will the Minister say that there is no intention to take that power
away from the court of first
instance?
6.30
pm
The
Government’s explanatory notes
state:
“It
would be for the Court to form their own view as to guilt on the
evidence available to
them”.
Liberty
argues:
“This
would represent a fundamental change of the Court of Appeal’s
role and the usurpation of the role of the jury in determining
guilt.”
It states that
Liberty
“would not
support a statutory formulation which meant that any procedural error
or illegality by the State led to the conviction being
quashed.”
Maria
Eagle:
I know that my hon. Friend is seeking to put on
record what Liberty has said, but does he accept that it was referring
to the clause as originally drafted, and that amendment No. 207
substantially answers those
concerns?
Harry
Cohen:
I was going to make that point. I do understand
that.
Liberty
continued:
“Rather
than legislation which takes an absolutist position on either side, we
believe this to be an area where the only sensible way to proceed is to
trust the Court of Appeal to make sensible decisions on a case by case
basis.”
That is exactly
the point of the amendment, which I welcome. It will give the Court of
Appeal a little more
flexibility.
As a
layman I can understand the Government’s not wanting convictions
to be quashed for procedural reasons where there is obvious guilt. Most
of the public
would take that view. I wish to say only that, where there have been
serious procedural mistakes or deliberate malfeasance—rigged
evidence or whatever—that must surely prompt the reasonable
doubt that the Court of Appeal would have to assess in its
interpretation of whether someone is obviously guilty. Again, I ask for
an assurance that my view on that is
correct. The
Minister mentioned mischief, and we can talk about people getting off
when they are obviously guilty by using procedure. But there can be
another mischief at play: if the prosecuting authorities and the police
present rigged evidence or use procedure wrongly. I cannot see anything
in the Bill that says there will be punishment for that. If somebody is
out of line in court, they are done for contempt of court. Well, quite
frankly, rigged evidence is contempt of court. In the balance of
things, if the Government are to make the change in question, which I
can go along with, notwithstanding what has been said and my being a
layman, there should be a balance to include punitive action for those
whose misdeeds have been a contempt of
court.
Mr.
Charles Walker (Broxbourne) (Con): I, too, am a layman,
and not as distinguished as my colleagues on both sides of the
Committee. I have no legal training, but I am concerned about clause
26.
For the public to
have confidence in the legal judicial system, they need to be reassured
that the players within the system are operating to the highest
standards and levels of excellence, not taking short-cuts and making
mistakes. It is incumbent on the police, the Crown Prosecution Service,
barristers and the judiciary to operate to the very highest standards
of professionalism. If, in the process of bringing a case to court and
processing that case through the court, mistakes were made and the
conviction may be unsound or is based on not the full facts, or if
process errors have been made in reaching the conviction, it is not
unreasonable to review that process and order a retrial.
I become concerned when we, as
politicians, talk about obvious guilt—“Well, the
defendant is obviously guilty, so there’s no need for a
retrial.” There are many cases that go to court where many of us
could argue that the defendant is obviously guilty. We used to do it in
the middle ages, saying, “He’s obviously guilty, so cut
his hands off, cut his head off because we don’t need to waste
everyone’s time.” But we have advanced since then, and we
have processes. Those processes must be followed and respected, and
people will not respect or follow them if they know that their failings
will not carry consequences. I would like to put my concerns on the
record.
Maria
Eagle:
On the point about the middle ages and assuming
that people are guilty, the provisions and the changes that we are
making to amendment No. 207 are only brought into play where it is
absolutely clear to the Court of Appeal, on the evidence available to
it, that there is no reasonable doubt about the guilt of the appellant.
For example, he may have pleaded guilty at first instance, or his
grounds for appeal may not challenge the issue of whether or not he is
guilty, so this measure is not a resort to the lynch mob. I hope that
the hon. Gentleman accepts that.
Mr.
Walker:
I appreciate that, but clearly if the proper
process has not been followed but the gentleman is guilty, he will be
found guilty again at a retrial. However, holding the retrial would
demonstrate that if the proper processes are not followed by those
involved in the first trial, there will be consequences. A retrial will
have to be gone through at great expense to the public purse and great
tediousness to all those involved, but in my view that is why we have a
legal system. Even when it becomes difficult and annoying and tedious
to respect that legal system, it needs to be cherished. I feel that in
some small way the clause undermines excellence in the legal system and
may actually promote short-cuts and a certain sloppiness that we could
do
without.
Maria
Eagle:
We have had an extensive and wide-ranging debate,
as one would expect on such an important matter. I shall do my best to
deal not only with amendments Nos. 100 to 102 and amendment (a) to
Government new clause 28, to which the hon. and learned Member for
Harborough spoke, among his other presentations of his views, but with
some of the points that have been raised during the debate by Members
on both sides of the Committee.
By those who have opposed not
only the clause as it was originally written but the amendments to the
clause—those who think that the clause should not stand part and
that we should leave the law as it is, which I think is more or less
the position of the Opposition—the view has been expressed that
the provisions have been plucked from the air as a quick press release
by the Government in response to some sort of pressure, that they are
an attempt to look tough. In fact, there has been an extensive period
of consultation lasting a number of years.
Long before I became a Minister
in the Department and long before the Ministry of Justice existed,
consultations were going on. It is not something that has been plucked
from the air as some sort of faux response to a concern that does not
really exist. To pray in aid, I should like to quote from a couple of
reports. The July 1993 report of the Royal Commission on Criminal
Justice said that nine out of 11 members
“believe the Court of Appeal
should not quash convictions on the grounds of pre-trial malpractice
unless the court thinks that the conviction is or may be unsafe. In the
view of the majority, even if they believed that quashing the
convictions of criminals was an appropriate way of punishing police
malpractice, it would be naïve to suppose that this would have
any practical effect on police behaviour. In any case, it cannot in
their view be morally right that a person who has been convicted on
abundant other evidence and may be a danger to the public should walk
free because of what may be a criminal offence by someone else. Such an
offence should be separately prosecuted within the
system.”
Lord Justice
Auld, in a 2001 report on his review of the criminal courts in England
and Wales,
said:
“In my
view, consideration should be given to amendment of the present
statutory test to make clear whether and to what extent it should apply
to convictions that would be regarded as safe in the ordinary sense of
the word but follow want of due process before or during
trial”.
The Government
are responding to a long-standing concern among some practitioners that
there is an issue. The measure is not something that has been plucked
out of the air as the latest cause to try to show that the Government
are being tough on crime and
tough on the causes of crime. It is not merely that. There is an issue,
which is acknowledged by some
practitioners.
Mr.
Walker:
I could have some sympathy for the view that if
someone makes a purely procedural error in prosecuting a case, there
might be an argument for not going for a retrial. I am not convinced,
but I would have some sympathy. But if someone involved in a case
committed a criminal act as part of that case, but it still was not
felt that there should be a retrial, I would be extremely worried. I
cannot believe that the Minister is seriously arguing that
point.
Maria
Eagle:
I have not said anything about retrials yet,
although I am about
to.
Mr.
Garnier:
If we are to accept the logic of the hon.
Lady’s argument in relation to the support that she finds for it
from some of the members of the Runciman commission in 1993, presumably
the next step that the Government wish to take is to prevent
applications being made on the grounds of abusive process before trial.
She cannot logically argue for one and still permit me to prevent the
case from going on ab
initio.
Maria
Eagle:
I am merely praying in aid some of those comments
to show the Committee that this is not a measure that has just been
plucked out of the air by the Government as the latest way to
demonstrate that we are tough on the causes of
crime.
Mr.
Garnier:
Let us not worry about Tony Blair’s
rhetoric. He has been airbrushed out of the Labour party’s
consideration. Let us just consider the merits of the hon.
Lady’s argument. They are that in certain circumstances the
Court of Appeal should not concern itself with the procedural
misconduct that has gone on; if the facts suggest guilt, the conviction
should be upheld. If that is right, why then is she
permitting—there is no proposal here to prevent it—the
continuance of the procedure by which defendants’ lawyers can
apply to the trial judge to prevent the case from continuing because of
abuse of
process?
Maria
Eagle:
What we have before us relates to appeals. We do
not have any proposals and I do not know of any proposals to make the
sort of changes that the hon. and learned Gentleman suggests. I do not
seek to do so. We are seeking to deal with a small issue of
long-standing concern to practitioners as well as to politicians. The
quashing of convictions, where people are plainly guilty, which are
forced upon the Court of Appeal because of the current state of the
law, whether or not it thinks it correct, gives rise to serious
concerns in the few cases where that happens. They bring the criminal
justice system generally into a great deal of public
disrepute.
6.45
pm
Mr.
Garnier:
If the Minister’s amendment is made, let
us assume that the facts that would permit the Court of Appeal to
uphold a conviction despite misconduct would be available to the trial
judge and the defendant’s team before trial. On her case, the
Court of Appeal must uphold the conviction, even though the cases of
misconduct had occurred in the conduct of the prosecution, either
beforehand or during the course of the trial. What is the logical
difference in upholding the conviction, despite the
prosecution’s misconduct, before the Court of Appeal, but not
before the judge in the first instance? The concept is the same: the
court will not permit misconduct to override the rule of law. Why
should there be a difference?
Maria
Eagle:
I am still not convinced that I totally understand
the point that the hon. and learned Gentleman is
making—
Maria
Eagle:
If the hon. and learned Gentleman wants to try
again, I will give him one more chance. It might just be that because
it has been a long day, it is too late for me to understand his point,
or it might be that he is just not making himself clear—I am not
sure which.
Mr.
Garnier:
It might be a combination of both those things.
There is a procedure within the criminal justice system that allows a
defendant to apply to the court to stop the prosecution because there
has been an abuse of process, some form of misconduct, some withholding
of evidence that the Crown wishes to use, or some form of misconduct by
the police. Armed with the evidence of that abuse of process and
misconduct, the defendant applies to a judge and says, “Look at
all this. I can’t possibly have a fair trial. Stop it.”
The judge will say, “Yes, you have been mistreated. The
procedure has been misapplied. The police have misconducted themselves
and a host of other matters have been brought to my attention that
makes the continuance of this criminal process wrong. I will stop
it.” The Minister is only transferring those facts to the Court
of Appeal after the event. A trial can be stopped before the event
under the current law through an injunction. However, the Minister is
saying, “I do not see a connection between the principles that
will stop a trial before trial, and those that will uphold a conviction
based on a case that has been
abused.”
Maria
Eagle:
No, I was saying that I did not understand the
point that the hon. and learned Gentleman put to me. I hope that I now
understand a little better than I did before. There is a distinction.
In the first instance, there has not been a decision about guilt. The
evidence has not been heard. The defence might make a submission about
abuse of process, and it is then for the judge to decide whether the
trial will go ahead. If the prosecution does not agree with the
findings on which the trial is stopped, there is now a provision
whereby it can appeal to get the trial restarted. With clause 26, we
are dealing with an appeal after the event, when there has been a
finding of guilt in one way or another, and with a small number of
cases in which it is clear to the Court of Appeal on the evidence
available that there is no doubt about guilt. I understand that both
Opposition parties do not see the
need for that. They have made that clear and it is a perfectly
understandable and legitimate point of view. The Government, however,
do not agree.
The
hon. Member for Broxbourne asked why we could not just have retrials.
Retrials might well be appropriate in some cases. In many cases, they
may be the way to deal with issues that have arisen that make a
conviction unsafe. However, that system does not always work. For
example, it might be impossible to have a retrial because of the
passage of time, the death of a witness or the availability of a
witness. Some cases come to the Court of Appeal many years after the
original conviction. Others take less time to come to court, but people
can die or become unavailable as witnesses very suddenly. It is not
always possible for a retrial to be the answer.
Even when a retrial is
practical, there can be other concerns, such as the effects on victims
or witnesses of having to go through the entire legal process again.
That can sometimes be too much for them. Retrials do the job in some
cases, but they are not the only way to ensure that matters are dealt
with
properly.
The
hon. Member for Somerton and Frome suggested that the Government
amendments to clause 26 would require the Court of Appeal to retry the
case or to change fundamentally the role of the Court of Appeal. I do
not accept that. The Court will only consider cases in which it is
absolutely clear from the evidence available that there is no
reasonable doubt about
guilt—[
Interruption.
] We are talking about
the new version of Government amendment No. 207, rather than the
original one.
I think that that answers many
points made by hon. Members. They have dealt with some of the issues on
the basis of the clause’s original wording. They have not
acknowledged that Government amendment No. 207 changes the effect of
clause 26. It gives more discretion to the judiciary, which will deal
with the matters concerned, particularly in respect of the procedural
irregularity. My hon. Friend the Member for Leyton and Wanstead
acknowledged that after I intervened while he was relating the views of
Liberty to the original
clause.
Mr.
Heath:
I do not entirely accept what the Minister says
about Government amendment No. 207. Undoubtedly it changes the
threshold and the test that the Court of Appeal must apply, but it
still puts the Court in the position of determining the guilt or
otherwise of the appellant. The original wording required that the
Court of Appeal be satisfied that the appellant was guilty. Now the
Court of Appeal must think that there is no reasonable doubt about the
appellant’s guilt. That is not a change of kind; it is simply a
change of
threshold.
Maria
Eagle:
Perhaps the hon. Gentleman has forgotten what I
said in my original remarks, which now seem to have been made some time
ago— [
Interruption.
] I am glad to hear it.
The intention behind the change is to make it clear that the Court of
Appeal is an appeal court and is not supposed to retry entire cases. I
do not know whether it will assist Committee members if I make it clear
that during the formulation of the Government’s amendments to
clause 26, which are now found in amendment No. 207, we took the
opportunity to clarify the senior judiciary’s views with them
directly.
I hope that
that deals with some of the issues mentioned by Committee members in
respect of the points made by Professor Zellick, who wrote to all
Committee members about the Criminal Cases Review Commission’s
views. As I said, it is quite clear that the professor does not suggest
that the clause is unnecessary but has concerns about the wording. We
are now coming to amendment (a) to Government new clause 28, which was
tabled by the hon. and learned Member for Harborough. That amendment
would have put the wording suggested by Professor Zellick into the
clause, thus requiring the Court of Appeal to be satisfied that to
disregard a development in the law would not give rise to substantial
injustice. That test has been applied by the Court of Appeal when
deciding whether, exceptionally, it should not disregard such a
development.
The
Criminal Cases Review Commission supported the proposed addition of
those words, but the Government are not persuaded that they are
desirable or even appropriate, partly because the meaning of the phrase
“substantial injustice” is insufficiently clear to the
Court to give it effective guidance in exercising its discretion, or to
the Criminal Cases Review Commission when assessing how the Court might
do that. If the Court is required to satisfy itself that exercising its
discretion would not create an injustice, one must wonder what it
normally spends its time doing. The implication is that it spends its
time creating injustice in other circumstances when it is not required
to consider such a test. There is a great lack of clarity about the
meaning of the phrase, which is why it has not been possible for us to
accept the wording proposed by Professor
Zellick.
Mr.
Garnier:
The Minister has the letter. If she goes to the
penultimate paragraph on page 3, she will see that Professor Zellick
says:
“We
explained our thinking to the Government prior to the tabling of the
amendment and we are disappointed that our reasoned arguments have not
found favour.”
It is one
thing for the Minister to suggest what she has outlined to members of
the Committee in general, and to me in particular, because I tabled
amendment (a), but she has had since June, or whenever she was made a
Minister in the
Department—
Mr.
Garnier:
The Minister has had since July to engage in a
discussion with Professor Zellick about why that form of wording is
unclear. If I may say so, it is no good at this stage of proceedings to
complain that it is unclear. I will take that complaint as it is
intended, but for goodness’ sake, the Minister has had four
months to ask Professor Zellick to explain himself. This suggests that
nothing has been done in that
direction.
Maria
Eagle:
I do not accept that nothing has been done in that
direction, or that there has not been careful consideration of the
wording suggested by Professor Zellick. Of course there has, but, as I
said, we
have also taken the opportunity to clarify the views of the senior
judiciary with them directly. Government amendment No. 207 reflects the
work that has gone on. One of our concerns about Professor
Zellick’s formulation relates to his use of the phrase
“substantial injustice”, which we do not think helps. The
purpose of the change from the clause as originally published in the
Bill to new clause 28 is to give the court wider discretion to decide
when it is appropriate to take notice of a change in the law, according
to the circumstances of an individual case. That is the purpose of what
we have been
doing.
Mr.
Heath:
The hon. Lady has been very patient with us, but
she says that “substantial injustice” is a difficult
thing for a court to construe. Does she think that “seriously
undermine” is any
easier?
Maria
Eagle:
It is acknowledged by Professor Zellick himself
that “substantial injustice” has no clear
meaning.
Mr.
Heath:
Nor does “seriously
undermine”.
Maria
Eagle:
We have taken the view that new clause
28 is worded sufficiently well to deal with the points with which it is
designed to deal. Of course we have taken into account the
representations that we have received. Had we felt that Professor
Zellick had come up with a better way of putting it, we would have had
absolutely no reason not to adopt the proposal, but, unfortunately, we
just do not believe that his formulation assists. That is a judgment
for Ministers to make at the end of the
day.
Maria
Eagle:
I will give way, but I want to get
on.
Mr.
Burrowes:
Does this not illustrate to the Minister that
tinkering around the edges with a fundamental principle of law that
affects the rule of law means that we have these problems of
definition? This is best left to common law and the practice of the
Court of Appeal, without trying to
legislate.
Maria
Eagle:
We introduced new clause 28 as a result of concerns
raised with us by the judiciary during the consultation on quashing
convictions, so I do not accept that we are tinkering with the law. To
the extent that we are tinkering with the law, we are doing that
because judges have asked us to do so. The hon. Gentleman ought to take
that into account when he makes his
remarks.
May I get on
to dealing with amendments Nos. 100 to 102? I think that the hon. and
learned Member for Harborough acknowledged that one or two of them were
seeking to deal with clause 26 as it was originally drafted. I do not
know whether he prefers Government amendment No. 207 to the original
provision. I know that he will vote against clause stand part, if there
is a vote, but I hope that he will accept that the formulation in
Government amendment No. 207 deals with some of the points addressed by
his amendments, so perhaps we are not as far apart as the debate might
suggest.
7
pm
Amendment No.
100 would impose conditions on new subsection 1(A) so the court would
need to have certain information certified by the trial judge. The hon.
and learned Gentleman is trying to make the same point about the court
not having to retry the whole case at the first instance but it is not
clear what would be gained by this certification. The evidence was
sufficient to prove the prosecution case. If it was incapable of
proving the prosecution case, the first instance judge would have had
it withdrawn; certainly the defendant would not have been found guilty.
On the other hand, if the judge is being invited to express his own
opinions on the strength of the evidence, one wonders what standard he
is expected to apply. Amendment No. 100 does not assist in that
respect. Obviously, the hon. and learned Gentleman will expect me to
say that we prefer Government amendment No. 207 to his
amendments.
Amendment
No. 101 appears to give the Court of Appeal a discretion to order a
retrial or to quash a conviction in cases where there has been serious
misconduct by anyone involved in the investigation or prosecution of
the offence but the court can, and in fact must, quash a conviction
when it thinks it unsafe and will continue to do so if it thinks it
would seriously undermine the proper administration of justice to do
otherwise. If it does quash a conviction, it may order the appellant to
be retried if that is appropriate in the interests of justice. That
will not be changed by the current formulation of clause
26.
Amendment No. 102
provides for the referral of serious misconduct to the Attorney-General
by imposing certain requirements on the attorney in cases so referred.
It seems to require the Attorney-General to consider as it talks about
initiating or not initiating. It is a requirement to consider. It is
not clear how far, if at all, it differs from a requirement to consider
taking proceedings that the Attorney-General would already have, nor is
it clear what would be gained by requiring the attorney to consider the
possibility of initiating a prosecution for, say, perverting the course
of justice where such a prosecution was appropriate. It is a bit
unclear but I suppose it is the best way of putting
it.
As I have already
said that we prefer Government amendment No. 207 and the consequential
amendments Nos. 208 and 209 to the hon. and learned Gentleman’s
formulation, I hope that he will be persuaded to ask leave to withdraw
his amendment, not least because it is not the precise formulation of
clause 26 that he is concerned about but the fact that it is there at
all. He clearly intends to vote against the clause, like the hon.
Member for Somerton and Frome.
I
hope that I have dealt with the amendments. I invite the Committee to
support the Government amendments and I ask the hon. and learned Member
for Harborough to withdraw his amendment. I ask every member of the
Committee to vote for clause stand
part.
Mr.
Garnier:
I appreciate that the Government would rather we
did not have to have this debate and that the amendments we have tabled
would go away. Unfortunately, the argument cannot go away even if,
procedurally, my amendments will do so.
Before I deal with the
Minister’s arguments, I want to thank the hon. Members for
Somerton and Frome and for Leyton and Wanstead and my hon. Friend the
Member for Broxbourne for their contributions to the debate. In many
respects, this is not a party political issue; it is a matter of
genuine concern across the Floor of the House and of deep concern to
all those who are interested in justice as, I am sure, is the hon.
Member for Tooting, who is a former director of Liberty. He has moved
on from
that—
Mr.
Sadiq Khan (Tooting) (Lab): Former
Chair.
Mr.
Garnier:
Three cheers. There we
are.
Mr.
Khan:
Apology
accepted.
Mr.
Garnier:
I think that that is a conviction that is
probably unsafe. In any event, it is a matter that all of us, across
the Floor of the House and on both sides of the Committee, are
concerned about.
Sometimes, convictions which
may, on the evidence, be apparently safe, are, in the wider
circumstances, unsafe and should not be sustained. The Government
appear to take a different view, whether as a matter of principle or as
a way of chasing popularity—it is difficult to discern. I am yet
to be persuaded that the Minister has taken on board or dealt
effectively with any arguments that we have made on the difference
between the Court of Appeal striking down the conviction that is
unsustainable on grounds of abuse, and the making of an application
before the first instance judge on the basis of abuse. I am not in the
least impressed by the suggestion that the big difference is that there
is no finding of guilt at the abuse stage—I do not think that
that was the Minister’s best point, if I may say so. We are
talking about an issue of principle, and that does not answer the
principle.
The
Minister mentioned that there are a number of arguments against
retrial, such as the deaths of witnesses and the stress of witnesses
who have to go through the process again, but the Court of Appeal must
consider such things all the time. The prosecution must consider such
things, for example, when it makes an application for retrial when a
jury cannot reach a decision. They are not strange and new concepts for
the courts to deal with—they deal with them every day. If the
absence of witnesses through either illness or death makes a trial
difficult, the Court of Appeal will presumably take that into account
and not order a retrial and quash the conviction, but that is a
judgment it must make on the facts before it.
I am not at all sure that there
is much more I can do to persuade the Government of the error of their
ways—I must leave it to others. In defence of Professor
Zellick—I can assure the Committee that he does not need me to
defend him—one has only to look at his bullet points in the
letter to see how baseless are the Minister’s complaints about
his reference to substantial injustice. It might be that the Government
do not want get to grips with the arguments, but that is not to say
that they are not arguments of substance. Bullet points 2, 4, and 7 say
that it
“is true that the
expression ‘substantial injustice’ even in this context
suffers from some uncertainty”,
We can see that that is a perfectly good
academic and practical argument to put forward, and it needs to be
dealt with. The Government have had since July to deal with it, but
they do not appear to have done so in any sense or manner.
I have said enough. I hope that
the House of Lords will give the clause a thorough grilling. Even if we
cannot stop the clause, we shall express our dissatisfaction with it at
this early stage.
Amendment agreed
to.
Amendments
made: No. 208, in clause 26, page 19,
line 38, at end
insert—
‘(2A) In section 13
(disposal of appeal against verdict of not guilty by reason of
insanity), after subsection (1)
insert—
“(1A) For
the purposes of subsection (1)(a), the verdict shall not be regarded as
unsafe for a reason unrelated to the correctness of the finding of
insanity if the Court think that there is no reasonable doubt that the
accused did the act or made the omission
charged.
(1B) Subsection (1A)
does not require the Court to dismiss the appeal if they think that it
would seriously undermine the proper administration of justice to allow
the verdict to
stand.”
(2B) In section
16 (disposal of appeal against finding of disability), after subsection
(1) insert—
“(1A)
For the purposes of subsection (1)(a), a finding shall not be regarded
as unsafe for a reason unrelated to the correctness of the finding that
the accused is under a disability if the Court think that there is no
reasonable doubt that the accused did the act or made the omission
charged.
(1B) Subsection (1A)
does not require the Court to dismiss the appeal if they think that it
would seriously undermine the proper administration of justice to allow
the finding to
stand.”’.
No.
209, in
clause 26, page 20, line 5, leave
out ‘against conviction’ and insert ‘under this
Part’.—[Maria
Eagle.]
Motion
made, and Question put, That the clause, as amended, stand part of
the
Bill:—
The
Committee divided: Ayes 9, Noes
6.
Division
No.
2
]
Question
accordingly agreed to.
Clause 26, as amended,
ordered to stand part of the Bill.
Clause 27 ordered to stand
part of the Bill.
| 
