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Baroness Blatch: I am extremely cautious about even suggesting that the noble Baroness may be imposing an unnecessary restriction, which I am sure is not the intention of the amendment. The amendment seeks to limit the commission's capacity to refer a sentence to the courts on the basis of new information. Any new information which might form the basis of a referral would have to be such that it showed that the factual basis on which that sentence was imposed was substantially wrong.

I appreciate the concerns which led the noble Baroness, Lady Mallalieu, to table this amendment. No one wishes to see the commission deluged with work on sentence cases to the detriment of its work on possible wrongful convictions. But I have to say that I do not think that that will be the case. If current Home Office experience is anything to go on, the commission will receive very few representations on sentence. C3 currently receives around 50 such applications a year for referral. Only one or two

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on average are referred and I know of nothing to suggest that that pattern will change once the commission begins its work.

In this amendment, compared with the last one, we seem to have gone from a relaxation of criteria to one which would impose too restrictive a criterion for sentence referrals. In the rare case where new information justifies a sentence referral, that information will not necessarily meet the requirements suggested. It may, for example, be a piece of mitigation which was simply not available to the sentencing judge. The factual basis of the sentence may be substantially intact, but the new mitigation might make the sentence quite unsuitable.

The present criteria for the referral of a sentence in Clause 13(2) require there to be a new argument on a point of law, or new information which gives rise to a "real" possibility that the sentence would not be upheld in the resulting appeal. Any new information, to form the basis of a referral, must therefore be of sufficient weight, in the context of everything else relevant to the sentence, to give rise to the clear possibility that the sentence would be varied as a result of the reference. That seems to me to be a sufficient hurdle to weed out any unmeritorious applications.

The commission will know that the Court of Appeal or the Crown Court do not alter sentences lightly. Where a sentencing judge or magistrate has used his discretion properly, it is not readily interfered with. So the commission will not be interested in arguments that the sentence is slightly wrong or that the judge and the Court of Appeal were rather harsh. Only something showing that the sentence may be seriously excessive or wrong in law would justify a referral.

The noble Baroness referred to the Royal Commission recommending that the commission should deal with convictions only. That is because the Royal Commission was not asked to consider sentences. That was outside its terms of reference. The noble Baroness said that the Bill goes further than the original Home Office proposals. In working up the proposals in the Bill, we looked at the types of cases which would be referred. The case of McAleny, referred in May 1991, is an example of a case which would not be referable if the amendment were accepted. Details of that case can be found in paragraph 2 of the note on the effect of the amendment. I have read it through and I believe that the point that is being made here is a pertinent one.

Moreover, we think that the criterion for referral which would result from this amendment would be too narrow. Information justifying a sentence referral, which will, we think, continue to be a rare event, does not necessarily show that the factual basis of the sentence was wrong. For example, the information might be an important piece of mitigation which was not available to the sentencing judge. In such a case, the original sentence will not be wrongly based but it may have become inappropriate. An example of that would be the case of McAleny, referred in May 1991. That information was not taken into account at the time of sentencing. The sentence, as I believe the noble Baroness knows, was reduced on referral from 10 years to nine.

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The criteria we have provided in the Bill seem to be broad and sensible and nothing I have heard today suggests that any amendment is required. I hope I am not being presumptuous but I do not believe that the noble Baroness would wish to narrow the effect of the Bill and not leave it with the flexibility which is already built in.

Baroness Mallalieu: The noble Baroness is wrong in her last conclusion. It is my primary concern to ensure that the review body is able to cope with what was the original intention, which was to deal with miscarriages of justice resulting from unsafe convictions. If other means are required to deal with appeals, whatever steps the Government take to deal with them should not interfere with the primary objectives of the review body, which was intended to deal with convictions.

I was not optimistic when I approached the amendment because if the noble Baroness was not persuaded by the reservations of the noble and learned Lord the Lord Chief Justice at Second Reading, she was unlikely to be persuaded by me. I had hoped therefore to provide an amendment which the noble Baroness could take on board as in some way restricting what I believed—and it seems clear the noble and learned Lord the Lord Chief Justice also believed—might well be a flood of these applications. It seems that the material which enables the noble Baroness to be confident that there will be no such flood of applications has not been communicated to the judiciary. I hope that she is right.

I am encouraged by some of what she has had to say. I am anxious that if sentences are to be referred, as the Government have determined that they are to be, those which are based on factual errors should be able to be dealt with. I am also anxious—I shall look carefully at what the noble Baroness a little earlier said—that the amendment should not restrict matters which cannot be dealt with in any other way. What I should like to do is to go away and look carefully at the authority to which she has referred. She does me a service which is unmerited of assuming that I know, understand and have read it recently. It may well be that I shall wish to return at a later stage with an amendment that will not exclude material which that case requires to be dealt with somewhere.

I remain unhappy that in a sense the procedure which should be dealing primarily with conviction may be hijacked by a large number of applications at the outset which will prevent its essential purpose being carried out properly. I know that at a later stage in the Bill there will be further reference, as there was at Second Reading, to the funding for the commission. I am sure that the noble Baroness will have well in mind that if she is wrong in her belief that there will not be a flood of these applications, additional resources will have to be made available to deal with them. Having said that, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

7.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 26:


Page 11, line 41, at end insert:
("( ) Any statement given by the Commission in accordance with subsection (9) shall be accompanied by—
(a) any statements and opinions obtained by or on behalf of the Commission, and
(b) any reports commissioned by or on their behalf,
in the investigation of the matter, unless such material is subject to the requirements of section 24.").

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 46. With this amendment, we turn to the issue of the proper disclosure of information to applicants. Indeed, we shall return to it again when we come to consider Clause 17.

One of the major reasons for miscarriages of justice over the years—and over far too many years—has been the absence of full disclosure of information to applicants. The most recent example, which has not only caused concern among those who have fought against miscarriages of justice over many years but has caused concern in the courts, has been the case last year of ex parte Hickey and others, a case better known as the Bridgwater Four. For years it had been argued that there was a general duty of confidentiality which denied the defence the information which was necessary to mount an appeal. What the Divisional Court in ex parte Hickey and others said was that there was a lack of elementary fairness, and that elementary fairness required that a person should know the evidence being considered so that he or she could challenge the accuracy or make further representations.

That has been an enormously valuable judgment because as a result of it the Home Office—I pay tribute to it—has started now to give to the advisers of applicants, including Justice, documents which had been withheld previously. It has been essential in ensuring that justice is done and is seen by applicants to be done. It is important in seeing that miscarriages of justice are not perpetuated. It is also important because this is the only way of ensuring that there are not repeated applications, as there have been in the case of the Bridgwater Four, to the commission or to the court because quite frankly the history of the Bridgewater Four has been a disgrace. One of those convicted died in prison and there have been repeated applications from the others who have proclaimed, with great sincerity and passion, their innocence over the years while in prison, despite the fact that new evidence has continued to come forward.

Although we welcome the general thrust of the Bill which is an attack on miscarriages of justice, nevertheless, this part of the Bill's provisions go the other way. That is not just as regards Clause 13. Clause 22 imposes a broad duty of confidentiality on the commission, members and staff and makes it an offence to disclose information without authority. Clause 23 contains exceptions to the

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presumption of non-disclosure. Ministers have said that these will provide sufficient gateways to allow disclosure as provided in the Hickey decision.

However, it is unclear from the wording of the statute whether the requirement to give the applicant sight of the evidence before a decision is made is a function within the meaning of Clause 23(1) (a). Furthermore, Clause 13 requires the commission only to provide refused applicants with a statement of the reasons for refusal. It does not specifically state that the commission must disclose all relevant material on which the refusal was made. The provision of statements of reasons for refusal was what the Home Office gave before the Divisional Court judgment. Frequently, such reasons were no more than a few paragraphs claiming that evidence in the possession of the Home Office contradicted assertions or evidence provided in the applicant's submission.

Therefore Amendments Nos. 26 and 46 would follow the judgment in the case of ex parte Hickey and others in requiring the disclosure of all relevant material to be given to the applicant. There would be protection in Clause 24 for sensitive material passed on to the commission by those in public bodies, which includes the police force. They may specify that it is not disclosed without consent and they may withhold that consent if it can reasonably be shown that the material in question is secret or sensitive. There would therefore be a duty to disclose information to applicants, balanced by an exemption for material which could be shown to be sensitive.

In the jigsaw which is caused by the provisions of this part of the Bill, it seems to us that this is an essential provision to ensure that miscarriages of justice, which are known to have taken place over the years and for which there is some protection from the decision of the Divisional Court in ex parte Hickey and others, shall be preserved. I beg to move.


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