Criminal Justice and Immigration Bill


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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.
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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.
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.
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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.
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”
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.
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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.
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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.”
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.
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.
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 na├»ve 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.
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Maria Eagle: I am still not convinced that I totally understand the point that the hon. and learned Gentleman is making—
Mr. Garnier rose—
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—
Maria Eagle: July.
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.
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.
Mr. Burrowes rose—
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.
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 ]
AYES
Coaker, Mr. Vernon
Cohen, Harry
Eagle, Maria
Keeble, Ms Sally
Khan, Mr. Sadiq
Michael, rh Alun
Sharma, Mr. Virendra
Waltho, Lynda
Wilson, Phil
NOES
Burrowes, Mr. David
Garnier, Mr. Edward
Heath, Mr. David
Hollobone, Mr. Philip
Hurd, Mr. Nick
Walker, Mr. Charles
Question accordingly agreed to.
Clause 26, as amended, ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
 
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