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Baroness Blatch moved Amendment No. 11:


Page 5, line 14, leave out from beginning to ("but") in line 17 and insert ("No variation of the conditions of bail granted to an appellant may be made by the registrar unless he is satisfied that the respondent does not object to the variation;").

The noble Baroness said: This is a minor amendment designed to clarify the drafting of Clause 6, which delegates certain powers of the Court of Appeal to the registrar, including the power, where the prosecution agrees, to vary conditions of bail granted to an appellant. This amendment makes it clear that it is to the proposed variation of the bail conditions, as opposed to the exercise of the power itself, which the prosecution must agree. I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Appeals in cases of death]:

Baroness Blatch moved Amendment No. 12:


Page 5, line 33, leave out ("by virtue of paragraph (a) above") and insert ("in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission").

The noble Baroness said: At present a person's rights of appeal die with him. Clause 7 provides for appeals when the convicted person has died to be conducted on his behalf by a person approved by the Court of Appeal. This is subject to a time limit of one year from the person's death. Amendments Nos. 12 to 17 and 64 to 67 are all minor, technical amendments designed to ensure that this provision operates smoothly.

Amendment No. 12 makes it clear that an appeal can be conducted on behalf of a deceased person following a reference by the Criminal Cases Review Commission, and that the approval of the Court of Appeal is required before a person can pursue the appeal in these circumstances. Amendment No. 13 provides that references by the Criminal Cases Review Commission where the convicted person has died are not subject to the general one-year time limit governing appeals on behalf of deceased persons. This reproduces the existing law, under which the Court of Appeal can consider the appeal of a deceased person following a reference from the Home Secretary, with no fixed time limit. Amendments Nos. 15 and 16 make equivalent provision for Northern Ireland.

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Amendments Nos. 14 and 17 to Clause 7, and Amendments Nos. 65, 66 and 67 to Schedule 2, provide that in specified enactments, references to the "accused", the "appellant", or the "convicted person" can be construed, where appropriate, as being or including the person approved to conduct the appeal on behalf of the deceased person. Amendment No. 14 does this for the 1968 Act, Amendment No. 15 for the 1980 Act, Amendment No. 65 for the Costs in Criminal Cases Act (Northern Ireland) 1968, Amendment No. 66 for the Prosecution of Offences Act 1985 and Amendment No. 67 for the Legal Aid Act 1988.

Amendment No. 64 is a consequential amendment to Section 5 of the 1968 Act, which was needed because an appeal under Clause 7 may be conducted by someone other than the convicted person. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 13 to 17:


Page 6, line 8, at beginning insert ("Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission,").
Page 6, leave out lines 11 to 15 and insert:
("(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.").
Page 6, line 29, leave out ("by virtue of paragraph (a) above") and insert ("in relation to his case by virtue of paragraph (a) above or by a reference by the Criminal Cases Review Commission").
Page 7, line 3, at beginning insert ("Except in the case of an appeal begun by a reference by the Criminal Cases Review Commission,").
Page 7, leave out lines 6 to 10 and insert:
("(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.").

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [The Commission]:

Lord McIntosh of Haringey moved Amendment No. 18:


Page 7, line 21, after first ("The") insert ("Chairman of the Commission, who shall not be a serving or retired member of the judiciary, and the").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 53 to Schedule 1, which is consequential.

With this amendment and with Clause 8 we reach Part II of the Bill, which is concerned with the composition, powers and responsibilities of the Criminal Cases Review Commission. As the Committee knows, on Second Reading we on these Benches gave a warm welcome to the establishment of that commission. If I spent a fair amount of my Second Reading speech pointing out defects in the Bill, I did so in the context of saying explicitly that those were comments about matters which did not detract from the general approval and welcome which we were giving to the establishment of the commission. The question of the chairmanship of the commission is one of those issues with regard to which we see a defect but it will be readily acknowledged—and we acknowledge it—that it is not a defect of the utmost or critical importance to the work of the commission.

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Nevertheless, it is important that the commission should be well established as being fully independent of the Court of Appeal, of government, of the police and of other parts of our criminal justice system. In saying that, I am fortified by the view of the Royal Commission which recommended that the chairman should be chosen for his personal qualities rather than any particular qualification or background which he may have. The commission recommended that, given the importance of what it called the authority—which is now the commission—being seen to be independent of the courts in the performance of its functions, the chairman should not be a serving member of the judiciary. I am referring to paragraph 20 on page 184 of the commission's report.

Our amendment goes a little further by suggesting that the chairman of the commission should not be a retired member of the judiciary. That in no way indicates any disrespect either for serving or retired members of the judiciary—and I hasten to say that in the presence of the two noble and learned Lords still present in the Committee. But the principle of independence from the courts is not personal or related to the skills of the judges concerned. We believe—and the Royal Commission believed—that that independence is necessary in order to establish in the minds of the public the entire independence of the new function which the commission is to have. We believe that the amendment which sets out the condition that the chairman should not be a serving or retired member of the judiciary and the consequential amendment in the schedule which removes the other conditions for the appointment of the chairman are modest improvements to the proposals in the Bill for the establishment of the commission. I beg to move.

Baroness Blatch: The noble Lord, Lord McIntosh, is absolutely right in saying that the appointments to the commission will be crucial if it is to inspire confidence in its work. The Government believe that the provisions of Clause 8 achieve that.

I am aware that the Royal Commission suggested that the chairman of the commission should not be a judge. We looked at the point very carefully when drawing up our proposals to create the commission. We concluded however that it would be undesirable to impose such a restriction in the legislation.

In appointing the chairman, and indeed any of the other members, it will be the qualities which the individual in question will bring to his task that will be of paramount importance. We think it would be counterproductive to preclude any candidate who had all the necessary qualities to be an effective chairman simply because he or she might be a judge or a retired judge. The Government intend that the selection process for the chairman should be as open as possible. The post will be advertised in the press. The job description and the type of person we are looking for will be clearly set out. We believe that this will provide us with the widest possible pool of candidates for the post and ensure that the best person available is appointed.

The noble Lord, Lord McIntosh, referred to a very important point in relation to the commission's independence from the courts, the police and government. It is important that we do not confuse the person with the institution. It seems curious to suggest that judges, of all

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people, lack the ability and personal independence to adapt vigorously to whatever task they are required to carry out.

If it were logical to exclude judges, should we not also exclude lawyers who might side with the prosecution or the defence depending on their usual kind of work? I believe it is fair to say that people such as judges do not have a deficit in the area of objectivity, in the balance of judgment, in impartiality, in analytical skills and, indeed, in good communication skills. Therefore, I hope that we would not, by way of the amendment, preclude the possibility of a judge, or a retired judge, becoming the chairman.

6.30 p.m.

Lord McIntosh of Haringey: It was useful to have in the Minister's reply the renewed assertion of the independence of the commission. I am grateful for that fact. Of course, no one is saying that judges, or retired judges, are not capable of doing things which are entirely different from their judicial work. Indeed, the outstanding example in that respect at present is Judge Tumim who is about to retire as Chief Inspector of Prisons. He has demonstrated the most admirable independence from the Government, from the Prison Service and, indeed, from almost everyone he has come across. Indeed, he has shown the most admirable dedication for the welfare of both those who serve in prisons as staff and those who are incarcerated. He will be a very difficult man to replace.

Of course, there has never been any question that the judiciary had a particular role in the running of the Prison Service. Therefore, there has never been any conflict of interest between Judge Tumim and the job that he had to do as chief inspector. I do not believe that that is the case here. It is important that the public should see that the commission is not simply an extension of the Court of Appeal. That is the impression that would be given—whatever the procedures for selection—if the result of such a procedure were that someone who might otherwise serve in the Court of Appeal was also appointed as chairman of the commission. Whatever the qualities of such a person, I think that that would be regrettable. It would also inhibit the effective working of the commission as an independent body.

I said on Second Reading that the relationship between the commission and the Court of Appeal is the most difficult, single subject underlying the Bill; indeed, a whole range of problems arise. We are discussing just one of them. It is not the most important and not a matter upon which I wish to divide Members of the Committee. I am mildly grateful for what the Minister said about the appointment system. It is with some regret that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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