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Noble Lords: Hear, hear!

Lord Taylor of Gosforth: My Lords, the Bill raises two issues of fundamental importance both for the individual and for the public as a whole. First, a sound system of criminal justice requires an appeal process which is accessible, reliable and comprehensible in order to safeguard the right of those charged with criminal offences to be punished only if the admissible evidence proves them to be guilty. That is in accord with the right to liberty enshrined in article 5 of the European Convention on Human Rights, the importance of which has been recognised by this House in passing the Bill recently presented by the noble Lord, Lord Lester of Herne Hill. In that regard, there are a number of respects in which the Criminal Appeal Act 1968 has been thought capable of improvement.

Secondly, public confidence in the criminal justice system requires a mechanism for dealing with alleged miscarriages of justice when fresh material comes to light after all conventional avenues of appeal have been exhausted. In that regard the Royal Commission recommended references back to the Court of Appeal by an independent body rather than, as hitherto, by the Home Secretary.

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The Bill before us addresses both of those important issues. I am glad to say that I support it. In doing so I speak not only for myself but with the concurrence of a group of senior judges with great experience both in the practice of the criminal law and in the Criminal Division of the Court of Appeal whom I have consulted on both the policy of the Bill and its detailed provisions.

At the heart of any appeal system is the test to be applied when deciding whether a conviction should be quashed or upheld. Clearly, the Court of Appeal cannot, and should not, carry out a complete retrial of the case, acting as judge and jury and reaching its own conclusions as to the facts. The role of the Court of Appeal is rather to decide whether anything in the conduct of the trial or in any fresh evidence which has come to light casts doubt upon the safety of the conviction or whether the court is otherwise unconvinced that the verdict is safe. But the public also demand, and rightly so, that the guilty should be convicted and that their convictions should be upheld. The appeal court must therefore have a statutory test which provides the proper criterion for determining whether a conviction should be quashed or affirmed.

In its report the Royal Commission recommended that Section 2 of the 1968 Act ought to be redrafted,

    "in view of the present overlap between the grounds of appeal and the confusion over the scope of the proviso"

to that section. Its recommendation that the court should decide upon the safety of the conviction has been broadly followed by the Government. The new test—whether the conviction is unsafe—will, in my view, be concise, just and comprehensible to the ordinary citizen without narrowing the present grounds of appeal. It will assist the Court of Appeal and those who appear before it. And it will help appellants to understand more readily what is at stake and the reasons for the court's decision.

There has been criticism of the fact that the precise test recommended by the Royal Commission has not been adopted. In my view, however, there is no merit in including in the test the words "or may be unsafe" since the implication of doubt is already inherent in the word "unsafe". A conviction which may be unsafe is unsafe.

I turn to Part II of the Bill. In some instances, even after a case has been considered on appeal, new evidence or a new factor comes to light which makes it necessary for further consideration by the Court of Appeal. The other major limb of the Bill meets that requirement by the establishment of the long-awaited criminal cases review commission. As your Lordships have heard me say before, I very much support the setting up of an independent body to investigate alleged miscarriages of justice, and I was delighted when, seemingly at the last moment, time was found by the Government for its establishment in the present legislative programme. The Court of Appeal will continue to be the final arbiter of the safety of convictions and it will be the commission's role to refer appropriate cases to the court. I believe that the need for a body independent of the government and the courts, whose task will be to consider and, where necessary, to

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investigate such cases is well established. In the other place, this aspect of the Bill was welcomed from all sides.

The commission will also provide valuable assistance to the Court of Appeal under Clause 14 of the Bill which empowers the court to commission investigations during the course of an appeal. In my view, although it will not be necessary to invoke it frequently, the demands of justice and efficiency call for such a power. It will allow the Court of Appeal to institute investigations other than by the parties themselves without the delay which would be caused by the dismissal of the appeal and subsequent application to the commission.

There are some subsidiary points to which your Lordships may wish to give consideration in Committee. The Bill provides an opportunity to clarify the provisions of Section 23 of the 1968 Act which deal with the admission of new evidence and I hope that the Government will soon be able to bring forward amendments. The power of the commission to refer sentence only cases to the Court of Appeal causes me some disquiet and was criticised in another place on the ground that the commission might in its early years receive a great number of applications of this nature which could leave it struggling to cope with the caseload it will inherit of allegedly flawed convictions, which is what the commission is essentially about.

There may also be an opportunity in the Bill to improve the procedures presently followed when a life sentence is imposed in a case of murder—in particular, regarding recommendations by judges as to the minimum term to be served. The current system for setting the so-called "tariff" period does little to enhance public confidence in our system and was recently criticised by the Court of Appeal. These are relatively modest reservations, however, and I strongly commend the Bill to your Lordships.

4.2 p.m.

Lord Alexander of Weedon: My Lords, I also warmly welcome this Bill. I do so both from my experience at the Bar and, more particularly, as chairman of Justice, the all-party law reform group which exists to promote law reform and maintain and enhance human rights.

In the criminal law, the consistent aim of Justice as an organisation is to improve processes so that they have the twin effects of increasing the prospects that the guilty will be convicted while improving safeguards against wrongful convictions.

Justice has experience over more than 30 years of looking into suggested miscarriages of justice. There is no other body which has existed to do so on a regular and structured basis. Not long ago Justice was described in The Times as,

    "a place of last resort when official procedures have failed".

In the course of this extensive work, Justice became convinced many years ago of the importance of the creation of a review body, independent of the courts, the police and the executive, to examine complaints and initiate appropriate proceedings for appeal to the courts.

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We strongly so submitted to the Royal Commission on Criminal Justice, so well chaired by the noble Viscount, Lord Runciman.

We welcomed the clear and unanimous view of the Royal Commission that a new review body, wholly independent of government, was needed. So I warmly compliment the Home Secretary, Mr. Michael Howard, on his decision to implement the Royal Commission report. In introducing the Bill he said,

    "We share a common interest in ensuring that our system is the best we can provide, that it contains all the necessary safeguards to minimise the possibility of a wrongful conviction, the most effective appeals procedures that we can devise, and the best machinery for investigating possible miscarriages of justice".

Those are uncontroversial aims, but it is good to hear them so positively stressed. On the same occasion, the Home Secretary also said,

    "We need a new investigative body that is constitutionally separate from, and visibly independent of, both Government and the courts. We also need to clarify and strengthen the powers of the Court of Appeal to identify and resolve doubtful cases at the earliest opportunity".—[Official Report, Commons, 6/3/95; col. 23.]

These words demonstrate the Home Secretary's wholehearted commitment to the Bill, and no doubt its inclusion in the current legislative programme reflects his determination. I would like to thank him for his personal commitment to ensure this excellent and most positive development for improving criminal processes. I would also add that strengthening the procedures for guarding against miscarriages of justice serves to raise confidence in the criminal justice system as a whole. This is crucial in establishing guilt in cases where charges are properly brought home against an accused.

The Home Secretary rightly laid stress on ensuring that the machinery for the new commission was as good as it could possibly be. In this spirit, I should just like to comment on two aspects of the machinery which is created by the Bill. First, it is obviously important that the investigation should be efficient and should be seen to be independent. I welcome the fact that members of the review body will include a mix of lawyers and non-lawyers. The Royal Commission rightly said that the precise numbers and mix must depend on its workload. I also agree with the Royal Commission report that, in general, investigation should be carried out by police forces. But I also believe —it is again what the Royal Commission recommended—that the review body should have on its own staff people with relevant investigative experience. I believe that the machinery would work better if there were a small core of police officers, possibly seconded for a period from their current police service, who were a part of the central team.

My noble friend the Minister said in opening the debate that it is vital for the commission to have strong and effective investigative powers. I agree and welcome that commitment. But under the Bill at present the commission has no power to appoint its own independent investigators from its own staff in any circumstances. I think that there would be much to be said for its having at the very least a residual power to appoint independent investigators in particularly sensitive or complex cases. I know that an all-party amendment to provide such a power was narrowly

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defeated in another place, but I would hope that consideration would be given to this proposal again both by the Government and by your Lordships' House.

The second issue that I wish to raise relates to disclosure of evidence. In the past, the absence of full disclosure of evidence has been one source of miscarriages of justice, and also a major grievance to applicants whose cases the Home Office has refused to refer to the Court of Appeal. In summary, those applicants did not have the material which had been gathered in response to their complaints properly disclosed to them, nor any opportunity to answer the information which was influencing the Home Secretary in his decision. They met what was in many cases quite simply a brick wall. That was recognised by the Divisional Court in its judgment in Ex parte Hickey and Others last year. The court held that fairness required that applicants should be able to see and to comment on evidence which had previously been refused to them so that they could challenge its accuracy or make further representations. This is crucial to ensure that justice is done, and is seen by applicants to have been done. As the Divisional Court judgment said:

    "Principle dictates that, absent powerful countervailing considerations, advance disclosure is required. It is required in the interests both of fairness and informed decision making. Without it an adverse decision may not be right; it will not be fair".

This is a point of real substance. In one case with which Justice has been involved for more than five years, which relates to the conviction of a man called Sammy Davis for rape, many of those who have looked at the case believe that there are very real doubts as to whether he was guilty. But the Home Office did not feel it appropriate to disclose the result of their investigations to his advisers. In the Divisional Court case to which I referred and after disclosure of the evidence had finally been made, the court took the view that there was a clear ground for hearing an appeal as the conviction might be unsafe. This illustrates just how important it is that the advisers to the applicant should have an opportunity to consider the evidence.

Doubts have been expressed as to whether the provisions of Clauses 23 and 24 of the Bill preserve this emphasis. They would appear at first sight to provide for a general duty of confidentiality which is qualified by some limited exceptions. These exceptions are very general and do not specify the occasions or purposes for which disclosure is required. Concern was expressed about the provisions in another place. Ministers in response helpfully stated that the same approach which was established in the recent court judgment would in practice be followed, saying:

    "In our view, the Commission will be governed by the same duty of fairness and by the resulting requirements of disclosure".

So I welcome the clear statement today from my noble friend the Minister that the Government recognise that it is important in principle that information should be disclosed to the applicant. It is in fact elementary because only in that way can the applicant have the chance to answer new material and only in that way can the procedures of the commission be sufficiently transparent to be seen to be fair. I believe that exceptions, if they arise, should be rare.

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I wish to refer briefly to one other point. As the noble and learned Lord the Lord Chief Justice pointed out, Clause 2 of the Bill provides that the Court of Appeal shall allow the appeal,

    "if they think that the conviction is unsafe".

Anxieties have been expressed as to whether that sufficiently covers the situation where the conviction might be unsafe; but, again, in another place the Minister in response—and I have no doubt that my noble friend will confirm this—stated that what is described as the "lurking doubt" test would still apply. The confirmation of the noble and learned Lord the Lord Chief Justice of his understanding on this was welcome. As he said, a conviction is unsafe if it may be unsafe and if that is clearly established so that no one is in any state of doubt, it is extremely welcome.

Before concluding, I should just like to state my support for the view expressed by the noble and learned Lord the Lord Chief Justice on the desirability of the Court of Appeal considering certain possible changes which affect those sentenced to life imprisonment. In particular, where the judge states in open court a "recommendation" that a prisoner should serve for a minimum period of years, that recommendation—albeit stated in open court—is not an order, as I understand the law, from which an appeal may be brought. I believe that the present position with regard to mandatory sentences and the executive procedures which are involved in implementing them is far from satisfactory in general. But I recognise that that is a wider topic than falls within the Bill. I ask that careful consideration be given to the proposal of the noble and learned Lord the Lord Chief Justice.

I end where I began. I warmly commend the principle of the Bill to the House and again express gratitude to the Home Secretary for the personal impetus he has put behind this most worthwhile reform.

4.13 p.m.

Lord Mishcon: My Lords, is it not amazing that it has taken until this year for us to consider a power that was vested in the Home Secretary to refer cases, where he saw fit, to the Court of Appeal because there was doubt about a conviction? All Members of this House have respect for politicians, even if those outside the House do not share it. However, how extraordinary that this power and right in regard to our system of justice should be reposed in the Home Secretary. How extraordinary that it should take until now for us to be considering powers to investigate where matters of miscarriage of justice occur.

I hope that your Lordships will not think this self-advertisement, but I am reminded that reference has been made to the report on the Maguire case by that fine judge, the right honourable Sir John May. In the Maguire case there was a conviction which was lifted only in 1991. I wish to read from page 67 of the report. Sir John May wrote in 1985:

    "in May 1985 Lord Fitt initiated a debate in the House of Lords on the Maguire case, pressing the Government to reopen it. He was supported from all sides of the House and Lord Mishcon, Labour

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    front bench spokesman on Home Affairs, made a new and specific request to the Home Secretary (although he said he was speaking in a personal capacity)".

Then there is the quotation of what I suggested to the Home Office Minister at that time:

    "to appoint independent scientific advisers to look at the evidence that was given and advise the Secretary of State whether there are grounds under the section [17 of the Criminal Appeal Act 1968] for him to consider that there is new evidence".

Then in his report Sir John May takes us through the evidence that was given from the Home Office as to why that suggestion was not acted upon. I read from page 71, paragraph 11.43:

    "On repeated requests to establish a scientific committee Mr. Stanton's advice was clear".

In parenthesis, I may say that he was a grade 7 official in the C3 Division of the Home Office. The report quotes Mr. Stanton's advice:

    "These approaches must continue to be resisted. We do not know what conclusions, if any, a committee of scientists might arrive at. There would be pressure for the Secretary of State to act on the basis of any recommendations (for example, referral) it might make, leaving potentially awkward decisions to be made, and setting a dangerous precedent. Arguably it remains up to the Maguires and their supporters to demonstrate a case, not for the Secretary of State to explore it himself".

That was in 1985. If that scientific committee had been appointed as scientific advisers to the Home Secretary on the Maguire case, would it have taken until 1991 for that miscarriage of justice to be redressed?

So I have a personal sense of satisfaction that we now have a Bill before us under which the investigatory work will be carried out, not by a politician but, with our usual reverence for the separation of powers, by an independent body that will have the power to investigate.

It is all very well to give bodies created by Parliament the power to do things. It is easy for us to put that permissive power on to the statute book. After all the publicity that has been given to grievous miscarriages of justice, the public will have great expectations that this body will deal promptly and thoroughly with applications and that it will have the power to investigate and the intelligence to reach proper decisions. Are we satisfied that, when the Bill becomes an Act of Parliament by the statutory instrument that the Secretary of State will be empowered to issue, this will be a body capable of carrying out this work?

I believe that the figure given was 730 cases per annum now being considered by C3 division of the Home Office. I believe I heard the Minister say in her very lucid account of the provisions of this Bill that provision was being made for that figure to be doubled, certainly in the first year, and perhaps even trebled. I thought that she said doubled, but let us take it for granted that it is to be trebled. That is not a bad estimate. One can imagine the number of people who will be encouraged to say, "My case is one of a miscarriage of justice. By the grace of God, there is now a commission to which I can apply".

One also has to add that cases now with C3 division will be passed on to the commission. Are we satisfied that we shall have people of sufficient ability and training to staff the commission? Not everybody is satisfied, if I may say so with deep respect, that the

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officials of the Serious Fraud Office are necessarily of the calibre that we expected. Nor is everybody satisfied that those who run the Child Support Agency are of the ability that we anticipated. I hope therefore that remuneration of officials of the commission will be adequate to attract people who are genuinely able to deal with the administrative work that will be required as well as with the investigative work.

It is not just a question of our having faith in the police. I hope that in this House we shall always state in regard to the police what is the experience of most of us; namely, that the majority of our police force are brave, decent, honourable people who are doing a most difficult job. Having said that, we all know from our own experience—and it is only human—that a minority do not live up to that reputation. The public are a little suspicious of any inquiry being handed over to the police when it relates to the propriety of police action.

We cannot do without the police on such inquiries and investigations. But it would be awfully sensible for people in the police force to think of this commission as a correct step in their career, be it for a period of five years or whatever, so that their loyalty is not to their local police force but, as my noble friend Lord McIntosh suggested, to the commission itself. That must be the right way of doing things, rather than just passing work out to the police. As was rightly said from the Liberal Democrat Benches, one has to take into account the fact that, so far as the police are concerned, they are over-burdened as it is. Unless we want —noble Lords will forgive the expression—slick, quick work done of a not very thorough nature, we really must see that this is not just a matter of referral to a police force, and certainly not to a force that is involved in whatever may be the inquiry.

In conclusion, if we are trying to build an edifice of justice within the system of which we are rightly proud, please do not let us think again in purely non-practical terms. The man or woman who will apply to this commission will not, in 99 cases out of 100, be very literate and will not understand the process. We have to realise that there will be no justice unless the application that is made, the reaction to the possible communications from the commission, the reaction to new evidence that is procured and the submissions that the case is a proper one for the Court of Appeal are assisted by lawyers. When we talk about being assisted by lawyers, there is no point in trying to escape the inevitable conclusion that in 99 cases out of 100 that must be done on legal aid. We must take that fact into account. Otherwise, if we set the system up without making proper provision for people to obtain justice, our attempts at justice are half-hearted.

4.26 p.m.

Lord Campbell of Alloway: My Lords, at this stage of the debate I shall be very brief, address just three points and put down a marker for an amendment. Like all other noble Lords who have spoken, I welcome this Bill. As to the statutory test under Clause 2, I had already made a very rough note that "what may be unsafe is unsafe". Then I heard the noble and learned Lord the Lord Chief Justice indeed say so. That is a

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sufficient test. With respect, I do not support the suggestion that was made that the test should be that it "may be unsafe".

However, from my own practical experience there are worries about the lurking doubt. In the case of Heibner—in which I was not instructed at the time and am not instructed now—it is on record that the Court of Appeal held expressly that there was a lurking doubt and refused the application. This is not the moment to take up your Lordships' time. The case is on record and may be consulted. Therefore, let us not suppose that the lurking doubt is wholly dispensed with. If anybody is interested, I could find the reference in my chambers.

Secondly, clearly the Home Office and the police must be under an obligation, a duty, to disclose all relevant material in accordance with the ex parte Hickey decision mentioned by my noble friend Lord Alexander of Weedon unless there are compelling reasons not to do so. That will require some careful drafting. In principle, however, I support everything that was said on that matter by my noble friend.

The third point is that, as my noble friend said, there should be some form of residual power to appoint an independent investigator—a staff member—in difficult or contentious cases.

The marker for the amendment that I wish to put down at the end of Part I as a new clause affects the jurisdiction of the Court of Appeal and is to the effect that, where a person makes an application on or before arraignment to quash an indictment, an appeal shall lie to the Court of Appeal from the decision of the Crown Court either refusing or granting the application. That is not a matter that I should argue at this stage and take up time with it. But it is a matter which has received the interest and, to some extent, the approval of my noble and learned friend the Lord Chief Justice on another Bill. In fact, it would save a considerable amount of delay and a considerable amount of expense. It would also, broadly speaking, accord with the broad requirements of the fair dispensation of justice.

4.31 p.m.

Baroness Mallalieu: My Lords, as a practising member of the criminal Bar, I too welcome the Bill. I hope that the House will forgive me if a little of what I say is tinged with some personal unhappy experience. As a junior counsel, I was unhappily involved in the original trial of the Maguire family and their first rejected appeal against conviction. My client served many years of imprisonment before that injustice was recognised and acknowledged. More recently, I represented one of the Taylor sisters, both at the trial and later in the Court of Appeal. That was a case in which the failure of the Crown to disclose vital information to the defence emerged only after two young girls had served the first year of a life sentence. In that case, the miscarriage of justice was recognised and corrected by the Court of Appeal the first time round.

The need for a body such as that proposed by this legislation is now universally recognised. Victims of miscarriages of justice for many years have had to pin

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their hopes of righting what is a truly terrible wrong on attracting the attention and support perhaps of a dedicated lawyer prepared to work for nothing often over many years; or on capturing the attention and interest of an investigative journalist; or on the support of a Member of this House or another place who was prepared to take up the cause; or on a churchman who might have become interested in the case and was prepared to intercede; or, indeed, on the organisation Justice, of which the noble Lord, Lord Alexander of Weedon, is chairman and which, over some 30 years, has helped something of the order of 800 people a year who go begging for help when they see no other route to redress the wrong. Many people, of course, are simply dependent, or have been up to, now on family and friends and their efforts, and also, above all, on a great deal of good luck.

The proposed review body fulfils a real and urgent need. At risk of sounding as though I am carping, which I am not, perhaps I may just sound a few words of caution. Public expectations of this measure are very high. In fact, they are unrealistically high. Although the Bill can play an important part in fighting miscarriages of justice, such miscarriages of justice will still take place and there will still be many which cannot be corrected by this mechanism. It is just worth saying, as others have said before me, that every case in which a crime has been committed and the offender has escaped the due process of law is in itself a miscarriage of justice. This machinery, which is necessary and beneficial, cannot address those matters. It has to be looked at as part of a package which must include improved crime prevention, effective use of police resources and policing generally, and more assistance to the victims of crime.

There will still be miscarriages of justice which no body such as this can uncover or correct. We must be vigilant in looking at the way in which our criminal law is applied and is working to see where those danger areas are to be found. Perhaps I may give one example. In the legislation before this House in 1993—what is now the Criminal Justice Act—a number of changes were made which, for example, altered the rules in relation to corroboration and to the right of silence. When, for instance, a sexual complaint is made and only the accuser and the accused know the reality of the position, unless the accuser later admits that he or she has not told the truth, a miscarriage of justice will, or is likely to, remain uncorrected.

Having said that, the Bill must be part, in the public's perception, of an overall pattern of tackling both sides of the equation. It is essential that the public must have confidence in this body and indeed in the Court of Appeal. That confidence must be based, first, on the conviction that it is a truly independent body, independent of both government and the police, and, secondly, on the knowledge that the body is competent and has sufficient resources in order to carry out what will clearly in some cases be expensive operations. It may be necessary to instruct experts, find witnesses and take evidence. I am greatly encouraged by what the noble Baroness said about the adequate funding which,

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she maintains, will be available. But the public must be satisfied that the body will be fair, both in its composition and in its decisions—not just fair but seen to be fair.

When I started at the Bar in 1970, there was a notorious chairman of one of the busiest London magistrates' courts who, after he and his colleagues had been in retirement deliberating on a case for some time, was alleged to have told the defendant, "We think there is a doubt in this case but you are not going to have the benefit of it." That story may be apocryphal, but there is no doubt that the necessity for all parts of the criminal justice system not merely to be fair but to be seen to be fair is far more readily appreciated today by the judiciary at every level. I shall not say that it is impossible but it is difficult to find the bad tempered or obviously biased judges of yesteryear. But such fairness is also crucial because the press monitor the way in which justice is seen to be done in public and the public care about it.

So, with those points in mind, there are just four matters that I ask the noble Baroness to consider when she comes to reply. First, as other noble Lords have said, this review body will be under enormous pressure, particularly at the outset, from the number of cases likely to be referred to it. I echo the words of the noble Lord, Lord Mishcon, about the essential need for legal aid to enable applicants to prepare their applications to this body. It is precisely those who are inarticulate and ill educated or who may suffer forms of mental or other disability who are likely to be most prejudiced when trying to ensure that their application to this body is presented in such a way that it is selected for review. That seems to me to be one area in which, if legal aid is not available, there is a real possibility that miscarriages of justice may fail to be identified at the very start of the process.

Secondly, I echo what other noble Lords have said about the need for independence in relation to the police. I readily understand why the Government at this stage have opted for, at any rate, the majority of the investigations to be carried out by serving police officers. I am concerned that, particularly as time goes on—one knows this from other bodies where investigations are required—it is often the case that a pattern emerges in the numbers of cases coming before the body.

An in-house staff may be able to deal with matters very much more expeditiously and have considerably greater experience than police officers who are brought in for limited periods of time. I echo what other noble Lords, in particular the noble Lords, Lord Rodgers of Quarry Bank, Lord Alexander of Weedon and Lord McIntosh of Haringey, have said. At the very least let us see in the Bill flexibility which will enable at a future date in-house investigative teams to be set up where that seems appropriate.

The third matter I wish to mention is one on which I have been partly reassured by what the noble and learned Lord the Lord Chief Justice had to say. Together with both sides of the practising profession I was concerned about the substitution of the single unsafe test in the Court of Appeal. I was anxious, as many are, that

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there should be no raising of the threshold for a successful appeal. I hope that the Minister will be able to reassure those of us who are concerned about that matter. I understand that one of her colleagues in another place has been able to give that reassurance. It would be unfortunate if, in attempting to provide a single simple test, we were to lose, for example, the capacity of the court to deal with the lurking doubt case. It seems to me and to many other practitioners that if it appears that a conviction is unsafe the Court of Appeal should quash the conviction; if it appears that it may be unsafe there may well be good grounds for a retrial. The Court of Appeal has in recent years been using its power to order retrials more frequently with—I hope to be forgiven for speaking from personal experience—excellent results. In a retrial in which I appeared very recently, some three years after the original trial, more witnesses had been found than were available three years before.

The last matter I would ask the noble Baroness to consider when she comes to reply is the question of disclosure. I have absolutely no doubt that there would be many, many more cases of miscarriages of justice but for the recent development in the law in relation to disclosure. I understand that the Government and others are under pressure to take steps to ease the difficulties which the police are finding in complying with the present requirements. It may be that this matter may come before the House in due course in a future Criminal Justice Bill. In both the Maguire case and the Taylor case, to which I have referred, wrongful convictions resulted from a failure to disclose material. From what the noble Baroness has said already, and from what I hope she may say in reply, I trust that openness will be the order of the day, that there will be disclosure to the commission of all documents where the Home Office has previously reviewed a case, and that the applicant should see the commission's report and any statements and opinions or other reports which accompany it unless it is in the public interest not to do so or the sensitivity of the material prevents it. In other words, I hope that she will assure us that there will be a presumption in favour of disclosure.

I welcome the Bill, as have all others who have spoken. Improved as I think it can be, I believe that it will do a great deal to restore confidence in the criminal justice system and ultimately in the rule of law too.

4.44 p.m.

Lord Merlyn-Rees: My Lords, I welcome the Bill. It is a prime example of how events move a government to act in what in retrospect is obviously an inevitable way. I welcome the Bill to correct obvious weaknesses in the criminal justice system which have been too common in recent years. I am glad that the noble Lord, Lord Mishcon, mentioned the Maguire case. The noble Baroness, Lady Mallalieu, mentioned it in terms of practical experience. Much of what appears in the Bill and in the Royal Commission report stems from the original May inquiry.

My interest in this matter arose when I was Northern Ireland Secretary and Home Secretary and later because of a personal concern about the guilt of the Guildford

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Four and the Maguires. I, too, wonder how the new body will work. I learnt a great deal that concerned me in a programme on Yorkshire Television. Television programmes do not always perform a valuable service but the Yorkshire Television inquiry into the Guildford case was very revealing. I learnt a great deal from a visit to Styal prison to see Carole Richardson, who as a 17 year-old girl had been sentenced to life imprisonment. When I visited her she was 33 or 34. She is no longer in gaol. Anyone who has been involved in the criminal justice system as a politician could not travel back on the train without wondering what one does to correct the system. The medical staff at Styal prison said to me, "This girl is not guilty". They all said that. But that is not enough. There was something wrong with the system.

There is a need for a complete change in the procedures. C3 are not bad people but they are given an almost impossible task to carry out as civil servants. They should be freed in some way from dealing with alleged miscarriages of justice. When in a certain case I attempted correspondence with the Court of Appeal I was made to feel as if I was a rather foolish non-lawyer who should not interfere in those matters. The person I was writing about is now out of gaol. I am not pretending that there is an easy way through those problems but the legislation before us today is endeavouring to find a way.

I had a few constituency cases in a part of the world which the noble Baroness, Lady Mallalieu, knows well because her father was a Member of Parliament in that area. The constituents did not know what it was all about. They felt that there was something wrong. I pursued the case through C3. We shall have to be very careful when cases are submitted from such people because they will be dissatisfied at the end of the day unless the new body clearly explains why the case has been turned down—if the position is otherwise, there will be little problem.

For all these reasons I became involved with what the Royal Commission called the "cardinal's deputation". Led by the Cardinal of Westminster, it included the late Lord Devlin—I heard queries today about old men but I can only hope that I have as razor sharp a mind as Lord Devlin did when he was well over 80 and approaching 90—the noble Lord, Lord Jenkins of Hillhead, and the noble and learned Lord, Lord Scarman who, because of family illness, is not present today. The Bill owes much to the cardinal and his staff, to Robert Kee, who did more than assist us, and to Alistair Logan, a solicitor, who fits the category which the noble Baroness, Lady Mallalieu, described. He is a solicitor who almost sacrificed his career in order to pursue a case from which he could make little or no money.

I feel I should mention other people before raising one or two points. Much is due to Christopher Mullin, a Member of Parliament in another place. He is a classic nuisance figure. He does much better on the Back Benches than ever he would do in wasting his talents as a Minister. I was in Italy during the war. When Rome was falling we came across an Irish priest who had been helping RAF men and also soldiers to escape. When we asked, "What are you going to do now?", he said, "I'm

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going to help the Germans escape". Whatever government may appear in the next year or two, Chris Mullin will be there being a nuisance, because he cares not for man nor beast. In the other place and here in a different fashion, I have no doubt, such men are important.

We owe much to the Royal Commission and the noble Viscount, Lord Runciman, who together marshalled the arguments for change. I hope that the minority report by Professor Zander will be looked at carefully when we come to Committee and Report stages. I do not wish to speak as if we were at those stages, but there are a number of issues I ask the Minister to look at beforehand because I do not have the same view as others about the meaning of certain clauses.

The report explains at the beginning of Chapter 11 why it recommends the establishment of a new independent body. After raising the question of accountability, it deals with,

    "the powers it may need to investigate cases".

A number of your Lordships have raised that point this afternoon. That is the most important part of the commission.

The Home Office issued a very good press release on 23rd February. It states that the commission would, "direct and supervise investigations". As a former Home Secretary I asked myself whether I directed anything in that respect. The press release refers to "direct and supervise investigations". Will there be supervision and direction of the police? I have never noticed in the past that when a police force was asked to look into a case it was directed by the Home Office. The press release goes on to say,

    "direct and supervise investigations undertaken on its behalf".

So these are not policemen. I pull back from getting into a Committee or Report stage, but for reasons I shall come to in a moment I have the feeling that more can be done under this Bill than one thinks.

To those noble Lords who are to participate in the later stages of the Bill, I commend the scheme issued by the Home Office as to how the new system works. I shall not go into it all. It states,

    "The CCRC will have new powers to ... require a police investigation".

That is fine. It goes on to say that it will,

    "approve [the] appointment of investigating officers"—

which means policemen—and,

    "supervise investigation".

The noble Viscount, Lord Runciman, said:

    "Although the Royal Commission envisaged investigations being carried out by a designated police force under the direct supervision of the new review body"—

it is this direct supervision which I do not understand—

    "that body should not be precluded from recruiting onto its own staff trained investigators"—

a point that has already been made—

    "who would not necessarily be serving police officers".

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The Archbishop of Westminster wrote a letter to The Times and I shall use just a few lines of it. The letter states,

    "The Bill appears to provide no reserve power for the Commission to instigate and carry out investigations using only its own suitably qualified staff, and it appears to leave the Commission with insufficient powers effectively to plan, direct and supervise police investigations".

Under the present terms I do not see the commission supervising the police and calling in the deputy chief constable of a county force and asking, "Have you done this; have you done the other?" That is what supervision and directing means.

I was looking hopefully at the Bill as it has been drawn. Clause 18 requires the appointment of an investigating officer. Does that have to be a policeman or policewoman? Clause 20 refers to Sections 16 to 19 as being,

    "without prejudice to the taking by the Commission of any steps (including obtaining, or arranging for others to obtain, statements and opinions and commissioning, or arranging for others to commission, reports) which they consider appropriate".

That follows on from Clause 14(1) which states,

    "Where a direction is given by the Court of Appeal under"—

another section of the Act—

    "the Commission shall investigate the matter specified in the direction in such manner as the Commission think fit".

The commission can do what it likes. I see nothing to prevent the commission from calling others to work for it apart from the police. I understand the problem. A policeman has the right to question, but someone else would not have that right. I see this new commission as having far greater powers than is perhaps realised. When I operated with C3 we had practically no powers. In this Bill there is reference to "any power".

I welcome this Bill and I ask for clarification on those points as regards the powers of the commission because we shall debate it at a later stage of the Bill. I am convinced that, as well as the police, we should have other investigators. I have had a police guard for the past 22 years. I owe the police a great deal. I am not being anti-police, but there are aspects of certain happenings in recent years where one questions what the police have done. One can question what politicians have done. I support the police completely, but the new commission should have powers to investigate other than with the police themselves. We shall come back to that point. In preparation for that I say to the Minister that we need explanations of what those clauses of the Bill, as drawn, mean.

4.56 p.m.

Baroness Blatch: My Lords, I have noted with some pleasure and with much relief the general welcome for the Bill. I have also listened carefully to the very valuable points and expressions of concern which have been made. I shall of course try to address many of the points but constraints of time will prevent me from answering every single point. No doubt, much will have to wait until further stages of the Bill.

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It has been common ground in our discussions that the Bill is concerned not only with the pursuit of justice but also with the issue of confidence that justice is done and is seen to be done. I welcome the support which noble Lords have given to those fundamental principles.

The noble Lord, Lord McIntosh, opened the debate in terms of the points of criticism. I take into consideration very much all those points of concern that have been made in a very constructive way against the background of a general welcome for the Bill. The points made by the noble Lord, Lord McIntosh, have properly been echoed by many others during the course of the debate.

The first point considered what is meant by members with knowledge and experience. The noble Lord gave some examples of what he meant. It is not intended that they should all be lawyers—or even any of them. They may include former police officers, prison governors, forensic psychiatrists or probation officers, just to name four examples. The body will not be confined to people with absolute knowledge of the law.

The noble Lord, Lord McIntosh, and many others, including my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, were concerned about disclosure. The point made by the noble Lord, Lord McIntosh, was that the provisions in the Bill would weaken the judgment in, for example, the Hickey case. I do not agree. The Bill requires the commission to provide a fully reasoned explanation of any decisions not to refer a case. The Bill also provides gateways through which the commission can disclose information in other circumstances. These are sufficient to enable the commission to keep applicants informed of the progress made in investigating their case and, in line with the judgment in the Hickey case, to disclose information so that in the interests of fairness they can make further representations on matters that the commission has found in the course of its inquiries.

The noble Lord, Lord McIntosh, referred to the criteria for the commission to refer cases to the courts. The requirement that there should be some new evidence or argument is a broad one. It will enable the commission to refer any case to the courts in which some new point has come to notice which might lead the court to take a different view as to the safety of the conviction. The current grounds for allowing or dismissing an appeal are complex and overlapping. Under the Bill the Court of Appeal is required to allow an appeal against a conviction if it thinks that the conviction is unsafe, and to dismiss the appeal in any other case. That change clarifies the terms of the existing law and, in essence, restates the existing practice of the Court of Appeal. It has been warmly welcomed. Indeed, I noted the welcome given to it by the noble and learned Lord the Lord Chief Justice.

The discussion paper gave a broad welcome to the Royal Commission's formula of "is or may be unsafe" because the Government recognise the need to bring clarity and simplification into these matters. However, the Royal Commission's formula goes wider than the current practice of the Court of Appeal and was on examination found to be uncertain in its effect. The formula in the Bill provides a simple test which effectively restates the existing practice of the court. It

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does not narrow the grounds for allowing an appeal. Noting the reservation made by my noble friend Lord Campbell of Alloway, I have to say, consistent with the points made by my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, that the provisions retain the "lurking doubt" element of the current test for allowing an appeal.

The use of police investigators has been mentioned by many noble Lords. Under the Bill, the commission may obtain opinions and reports from, and have inquiries carried out by, whoever is appropriate. That might include accountants, psychiatrists or forensic scientists. However, where inquiries require the expertise and skills of the police, it is both the proper and most effective solution for that work to be conducted by police officers under the commissioners' direction and supervision.

On that point, perhaps I may turn to the issue raised by the noble Lord, Lord Merlyn-Rees. The noble Lord's understanding of this was about right. In effect, we are empowering the commission to use the police—not requiring it to use the police as the only means of exploring a case.

Perhaps I may reiterate what I said earlier. The Bill gives the commission all the powers it will need to carry out its investigations effectively and thoroughly. It will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf and in accordance with its directions and, if necessary, under its supervision. It will be able to require the appointment of an investigating officer from a different force if it thinks that appropriate or from public bodies other than those which investigated the crime originally if it thinks that the case would be prejudiced by the use of the same force when it is possible to engage a different force. It will be able to insist that it approves the choice of investigating officer before an investigation takes place. It will be able to direct any investigating officer to cease to act as such and to direct that that individual officer be replaced by another if his performance is not satisfactory.

The commission will be able to make its own inquiries and commission its own expert opinions and its own tests. It will be able to obtain access to documents held by police forces and other bodies. It will also be able to obtain relevant papers and other material held by my right honourable friends the Home Secretary and the Secretary of State for Northern Ireland as a consequence of their having considered possible miscarriages of justice under their existing powers. They will have the powers to operate in the way that was suggested by the noble Lord—

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