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Lord McIntosh of Haringey: There is some good news and some bad news in that reply. The good news is that the Minister's response to Amendments Nos. 21 and 22 was specifically—I hope I am quoting her correctly—that it would be helpful first of all to have the scientific expertise and then knowledge or experience of mentally disordered persons on the commission. I hope that when the selection process takes place, there will be specific reference to those two kinds of expertise as part of the process, whether it is by public advertisement or some other selection procedure. It would be helpful if the Minister were to indicate that the recognition that such skills were relevant and helpful could be included in the selection process.

Baroness Blatch: I did indeed say that they are skills that would be welcome. However, we are set against making them absolutely prescriptive. I think that I am right in saying that it will be possible for this Chamber to see the descriptions of the kind of skills that will be required. If I am wrong about that I shall write to the noble Lord.

Nevertheless, I take the points that he made and I shall consider them. If I need to give him a fuller answer I shall do so between now and the next stage of the Bill.

Lord McIntosh of Haringey: I am most grateful to the noble Baroness.

I return to Amendment No. 20, which concerns the legal profession. Here it is the Minister who is being rigid, not me. The Bill sets a minimum requirement that a third of all the members shall be persons who are legally qualified, as defined, and two thirds shall be persons who have knowledge or experience of any aspect of the criminal justice system. The Bill rightly states that for this purpose the criminal justice system includes the investigation of offences and the treatment of offenders. Therefore, presumably, it at least includes the police service and the Prison Service. However, that category could also include psychiatrists, probation officers or a number of other skills which are relevant but which are not normally thought of as part of the criminal justice system.

If it is not the kiss of death to him, the person I should like to see on the commission is Peter Hill, who produced so many effective "Rough Justice" programmes for the BBC. He has a profound knowledge of the criminal

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justice system as a result of having fought for the prevention and remedy of miscarriages of justice over a number of years.

We must not assume, as the Government seem to assume, that membership of the legal profession or experience of the criminal justice system, if too tightly defined, is the only qualification for membership of the commission.

I hope that we shall not assume that the only important task of the commission will be the control of investigations. I hope that the commission will act more widely and will undertake some analysis in the preparation of its report each year to the Home Secretary, which will enable it to make wider recommendations about means of reducing or eliminating miscarriages of justice in the future. I hope that it will have an advisory function as well as an investigative function. I hope that that, too, will be taken into account when the members of the commission are appointed.

With those provisos, and taking on board the modest indications given by the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 22 not moved.]

Clause 8 agreed to.

Clauses 9 to 12 agreed to.

Clause 13 [General provisions about references]:

Baroness Mallalieu moved Amendment No. 23:

Page 10, line 34, after ("raised") insert ("or not adequately raised or not adequately considered").

The noble Baroness said: In moving Amendment No. 23 I shall speak also to Amendment No. 25, which is consequential.

In our submission to the Committee, this is an important amendment. The provisions of the Bill, as presently drafted in Clause 13, allow referral to be made by the commission to the Court of Appeal only if there is new evidence or new argument which has not been raised in any previous proceedings. It would be unfortunate if the new review commission were to be prevented by that drafting from referring cases where it seems to the commission that there is a real possibility that the conviction was unsafe but the relevant argument or evidence had been raised in some rudimentary or insufficient fashion either at the original trial or subsequent appeal. If the object of the Bill is to provide a means by which miscarriages of justice based on an unsafe conviction can be picked up and corrected, I seek to persuade the Committee and the noble Baroness that it would be wrong to exclude that category of cases out of hand in the initial drafting.

Amendment No. 23 seeks to widen the category of cases which may be referred by the commission to the Court of Appeal to include those cases where the commission feels both that there is evidence or argument which it believes gives rise to a real possibility that the conviction is unsafe and that that material has not be adequately raised or considered before. That might arise in a number of different ways. I could give a great many examples, but I shall not do so because of the lateness of the hour. I shall confine myself simply to two examples.

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First, our knowledge and recognition of the facts which can lead to a miscarriage of justice is ever-increasing in the light both of experience and research. Interpretation by the Court of Appeal is not static either. The common law is constantly developing and, one hopes, progressing. We now recognise additional factors which can lead to miscarriages of justice and the unreliability of certain kinds of evidence which even 10 years ago would not have been fully understood or whose significance would not have been appreciated. Much of our experience and learning has, sadly, come from experience of such miscarriages.

Appeals which were rejected in the past would in some cases now appear to be likely to succeed. That is particularly true in the experience of the organisation Justice in relation to cases which were determined before the safeguards of the Police and Criminal Evidence Act came into force in 1986. Those safeguards have not only protected some suspects; they have also heightened the awareness of the courts of some of the ways in which untrue or misleading admissions can be made by the innocent under oppressive circumstances.

By way of one specific example from Justice's 1994 report, Unreliable Evidence, in 1984 a man called Peter Fell was convicted of murder on the basis of confessions made by him to police officers during interviews which were conducted over two days and which lasted some eight-and-a-half hours. His requests for a solicitor during that time were ignored. No solicitor was present. There was no identification evidence and no forensic link with the crime. The trial judge, while he acknowledged that there had been a breach of the Judges' Rules, refused to exclude his confession. Back in 1985 the Court of Appeal upheld the trial judge's view saying in effect that it was the pursuit of truth and the interests of justice which both authorised and required the officers to deny Fell the assistance of a solicitor.

By 1992, four years after the implementation of the Police and Criminal Evidence Act, a very different approach by the Court of Appeal to such matters is illustrated by the judgment given in the case of Miller, Paris and Abullahi (better known as the "Cardiff Three" case) where convictions were quashed on the basis that admissions which had been made under police questioning should have been ruled as inadmissible by the trial judge. At that time the judgment of the Court of Appeal attached great importance not only to the presence of a solicitor but to his active intervention, saying that it was of the first importance that a solicitor fulfilling the exacting duty of assisting a suspect during interviews should discharge his functions both responsibly and courageously.

I understand that Fell's lawyers are considering a renewed petition. Under the Bill as presently drafted, if it were to become law, his case could not properly be referred by the commission to the Court of Appeal.

Justice's report identified some 17 cases where convictions had been secured before the passing of the PACE Act based on disputed confession evidence, together with allegations of police malpractice, and which would appear now to be challengeable. All of those would appear to be excluded under the present wording of the Bill.

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We contend that it is important that these cases should be capable of being reconsidered by the review body and reconsidered in the light of current practice and greater jurisprudential knowledge.

Secondly—and this is every bit as important—as a practising lawyer it is right that I should draw the attention of the Committee to a category of cases which, as the Bill is presently drafted, would lie outside its scope of reference. Incompetence, inadvertence, errors of judgment and failure to appreciate the significance of a piece of evidence or argument on the part of lawyers acting for the accused are features of every legal system which is practised by human beings. I personally believe that the standard of competence at the Bar at which I practise is generally very high indeed. But, as those of us who have been in practice for any length of time know, there are occasions when lawyers make mistakes. Sometimes it is obvious to other people at the time. Sometimes it is only with hindsight—particularly in a long or complex trial which may involve many witnesses and literally thousands of pages of statements and exhibits—that the failure of the defendant's representative to advance a line of argument fully or to pursue an area of evidence adequately is apparent. It cannot surely be right to frame this new and important piece of legislation in such a way as to penalise a defendant whom the commission believes may have been wrongly convicted because his lawyer erred in not pursuing adequately a line of argument or evidence.

I, of course, accept—I anticipate that this may be the response of the Minister—that there must be finality. No one, least of all those of us on this side, wants to see the time of the commission or the Court of Appeal spent trampling over well-trodden ground. Clearly, if a matter has been adequately examined at trial or later in the Court of Appeal, the commission should not be adding to the burden of the Court of Appeal with a repetitive review. But cases in which the initial argument and the evidence were inadequately presented should not be excluded. This small measure is, in our submission, important. I hope that the noble Baroness will be able to respond favourably.

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