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Lord Hutchinson of Lullington: As a past practitioner, and one who is now very much out of touch with what is going on in the criminal courts, I support the noble Baroness. My experience has led me to appreciate that miscarriages of justice have taken place and will continue to take place because of the incompetence of lawyers and sometimes of judges or magistrates. It is an area with which in the past the Court of Appeal has failed so often to deal in the sense of allowing appeals when lawyers have made mistakes.

It must be of the greatest importance that this commission should not be hamstrung by the raising of some technical or legalistic point, it being said, "This was a matter that was raised at the trial or on appeal".

There are great dangers which lay Members of the Committee may not appreciate when young counsel, and often not so young counsel, are in the Court of Appeal, presenting, say, three grounds of appeal. The Court of Appeal may say, "Mr. X, it is your second ground which is the important one, is it not?" The advocate then feels at once, "Ah, I can argue the second point". He argues the second point and believes that he has put forward an

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excellent argument and that the court is with him. He will then skate over the other grounds quickly and no doubt sit down. Then to his surprise and astonishment the court finds against him on the point which it had indicated was the important one. In that way, a point is argued only for, say, two minutes. It is dealt with inadequately. The Court of Appeal will not have put its mind to it.

The noble Baroness mentioned Justice, when referring to cases after they have left the Court of Appeal. In the old days, when Tom Sargant would ask one to go through the papers of a case to see whether there were any grounds for thinking that there was a miscarriage of justice, how often would one say, "Oh, but the point here was inadequately argued. The judge missed the point, and the lawyer missed the point, but now it is too late; and it cannot be raised because the point has been raised but hopelessly inadequately".

I hope that the Minister will give serious consideration to this suggestion because I assure her that very often it is a basic reason that miscarriages of justice take place.

Viscount Runciman of Doxford: I add my strong support to the amendment and endorse what I have heard from the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Hutchinson. This matter was discussed at some considerable length during the deliberations of the Royal Commission which resulted in recommendations.

Let me say now what I would have said if I had not been abroad at Second Reading. I am delighted at the welcome that has been given to a Bill which is so closely based on what I believe is one of the most important single recommendations of the Royal Commission which it was my privilege to chair. We were well aware of the history of the argument for finality. We were, I think I can say, unanimous that the cases on record showed quite conclusively that this argument had in effect acted against the interests of justice: that deserving appellants had not had the hearing which they deserved in the Court of Appeal because the court was at that stage of its history anxious—we would have said excessively anxious—that the defendant should not have (as it has sometimes been put) a second bite at the cherry.

I seriously believe, as does the noble Baroness, Lady Mallalieu, that there is no downside to extending the clause by this small but important amendment. The amendment makes it quite clear that not only is the new commission entitled, but indeed has an obligation, to consider whether a matter which has been raised in the court of first instance has been raised so adequately, effectively and competently that the commission can be assured that there is no possibility of a miscarriage of justice of the kind which it exists to investigate and on which it might make a recommendation to the Court of Appeal. I very much hope that the Government will consider the amendment favourably.

Baroness Blatch: Clause 13 requires that there should be some new element for the courts to focus on before a referral of a conviction, verdict, finding or sentence may be made. If all the matters raised with the commission have already been raised at trial, or on a previous appeal, then the courts have had an opportunity to consider the case and will have reached a clear decision after due consideration.

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The amendment would enable the commission to refer a case on no grounds other than that, in its opinion, the courts had given insufficient consideration to some matter or matters that had come before it. That would not be right as it would put the commission in the invidious position of asserting its opinion or judgment on a matter above that of the courts. The commission is not a court of last resort, second guessing, sitting over and above the appellate courts.

The amendment could also enable the commission to refer a case on the basis that counsel had failed to put an argument with sufficient conviction, or had not presented new evidence with sufficient clarity. It could result in every unsuccessful appellant going immediately to the commission saying, "My case was inadequately presented, or inadequately considered". On what basis could the commission decide between all those? How would it distinguish between that great number of applications?

The Bill deliberately allows the commission the opportunity to exercise a wide degree of judgment about what qualifies as "new", depending on the circumstances of the case. Where an argument was so poorly presented that the courts may have been misled, or where the applicant's case was not put to the court, then the commission could reasonably regard such matters as new and could refer. But if the assertion was merely that the defence counsel had been out-performed by the prosecution, then in my view that would not be a sufficient ground for reopening a case after appeal. However, the amendment would allow that.

The amendment strikes at the nature of the relationship between the commission and the courts because it appears to allow the commission to usurp the role of the courts. However delicately the commission approached its task, therefore, it would be exposed to great pressure to claim a function properly that of the courts.

The noble Baroness raised the issue of incompetence and asked whether incompetent advocacy would be deemed an acceptable argument for failure to adduce material at an earlier stage of the proceedings. That would be determined based on the individual circumstances of a case and having regard to the practice of the Court of Appeal. It could prove a factor if, for example, incompetence led directly to a vital aspect of the defence's case not being put to the jury. So there would be that flexibility to make that judgment.

The noble Baroness asked me whether we need to consider the views of the law taken by the Court of Appeal. The commission should be able to interpret the intention flexibly—a point which I have already made—so as to have regard to a change in the Court of Appeal's view of the law as being capable of finding a new argument. So on the basis of believing that there is a case for founding a new argument, that too would be open to a judgment that the commission could allow the appeal.

I am not sure that I have given the most comprehensive and lucid explanation in relation to the amendment, but I hope that it will not be pressed tonight.

Baroness Mallalieu: With respect, the noble Baroness is not correct when she says that the effect of the amendment would be to make it open to an applicant to

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the commission to press for his case to be referred solely on the basis that a matter had not been raised adequately or properly before that. Clause 13(1) (a) requires the commission, before it makes such a referral, to be satisfied that there exists an argument or evidence which gives rise to a real possibility that the conviction verdict or finding would not be upheld, were the reference to be made. In other words, the commission would have to be satisfied, first, that in its view there was a possibility that it was an unsafe conviction.

The noble Baroness has heard the views of others, and I am grateful for the support of the noble Viscount, Lord Runciman, and the noble Lord, Lord Hutchinson, both of whom have vast experience in connection with the matter. I am unhappy with the response that the noble Baroness has given so far tonight, but I was cheered a little earlier in relation to a previous amendment. She said in one context that she was anxious that the legislation should not be inflexible. I was also cheered when she said that it was her practice, after the Committee stage, to look again at the arguments that had been advanced. I very much hope that this important point is one that she and her department will reconsider. If she feels unable to reintroduce it herself, then it is something to which I would wish to return at a later stage. However, this evening I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Trumpington: My Lords, I beg to move that the House do now resume. In moving the Motion, I suggest that this business be not resumed for 10 minutes.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 1995

7.15 p.m.

Lord Inglewood rose to move, That the draft regulations laid before the House on 1st May be approved [18th Report from the Joint Committee].

The noble Lord said: My Lords, the regulations are being made under the Pneumoconiosis etc. (Workers' Compensation) Act 1979. The purpose of the regulations is to increase by 2.2 per cent. the amounts of compensation paid under the Act to those who first satisfy all the conditions of entitlement on or after 1st July 1995.

People suffering from industrial diseases have the right to sue the employer concerned for damages. However, certain dust-related diseases take a long time to develop and may not be diagnosed until 20 to 40 years or more after exposure. Because of this, sufferers and their dependants can experience considerable difficulty in obtaining compensation. By the time the disease is diagnosed, the employer or employers responsible may no longer exist.

Parliament enacted this legislation in 1979 to provide a measure of compensation to those who cannot claim it in the normal way through the courts. It provides lump sum

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payments to sufferers from certain dust-related diseases, or, when the sufferers have died, to their dependants. However, I would point out that it has never been the intention of the Act to provide an alternative to taking civil action in the courts.

There are three basic conditions of entitlement, which must be satisfied before a payment can be made: first, that there is no relevant employer who can be sued; secondly, that no court action has been brought nor compensation received in respect of the disease; and thirdly, that industrial injuries disablement benefit has been awarded.

The Department of Employment does all it can to administer the compensation scheme in a sympathetic way. While it is necessary to ensure that payment conditions are met, it is also recognised that each case is an individual disaster and the department is as generous as the legislation allows. Since the Act came into force in 1980, over 7,800 applicants have made a claim and 75 per cent. of those have received payment. The total cost to date has been £39 million.

Payments under the Act are additional to any industrial injuries disablement benefit awarded. The Government have given an undertaking to Parliament to review the amounts payable regularly to maintain their value. These regulations aim to fulfil this commitment.

I feel sure that all noble Lords will agree with me that the circumstances leading to these payments are very unfortunate. They reflect the conditions in which some people worked many years ago. Action taken by the Government to control the use of asbestos and other hazardous substances should prevent such suffering for present and future generations of workers.

Nevertheless, I very much welcome the opportunity provided by these regulations to maintain the value of the compensation. I know all of us will recognise that no amount of money will ever compensate individuals and families for their loss, but at least these regulations allow us to give some practical and material help. I beg to move.

Moved, That the draft regulations laid before the House on 1st May be approved [18th Report from the Joint Committee].


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