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Baroness Blatch: The noble and learned Lord, Lord Scarman, who has a reputation second to none as a guardian of justice, has introduced an interesting and stimulating debate on one of the most important parts of the Bill. Two propositions have come through very strongly in all the debates here and in another place on investigations by the commission: first, that police forces have played a valuable and respected role in uncovering evidence of wrongful convictions and that the commission must be able to draw on that expertise,

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skill and commitment; secondly, that there must be a strong, independent element in miscarriage of justice investigations, which should not simply be handed over to police forces to carry out alone. The Government agree with both these propositions. There is no great gulf between any of us on the principles involved here. The question we are debating is how best to achieve that balance of police work and independent skills and resources.

In drawing up the Bill we thought a lot about that balance, and we have listened carefully to what has been said about it in debates both here and in another place. Where we have concluded that improvements could be made, we have introduced amendments, and I have tabled further amendments to do with the commission's investigations, to which we shall come later.

Words like "investigation" and "inquiries" can have a very wide meaning and, with your Lordships' permission, I should like to go over in some detail what the commission's investigations are likely to entail in practice. In some respects investigations of this kind are similar to other criminal investigations; in some respects they are different. One difference is that a good deal of the investigation in a possible miscarriage of justice case is likely to be about re-evaluating material which is already available, or which has recently become available, rather than looking for new material. This important work of gathering and analysing the available evidence is something the commission can be expected to do itself and it will have substantial resources to enable it to do so. Under Clauses 16 and 17 it has the power of access to all the relevant documents and other material including physical evidence. It does not need to look to a police force or to anyone else to achieve that.

The commission may decide, after an initial look at a case, that some fresh inquiries are needed. Scientific tests, or the opinion of a psychiatrist or psychologist, may be called for. In a fraud case there may be reason to engage an accountant to apply his expertise to a trial of financial dealings. All this the commission will be able to do without going through a police force or any other intermediary.

Another need which commonly arises in such cases is for new witnesses to be interviewed or old witnesses to be re-interviewed. Here, as I believe has consistently been recognised on all sides during the passage of this Bill, there is advantage in the commission being able to harness the skills and experience of detective officers employed by police forces. There are other ways in which such officers could be of considerable assistance to the commission: the tracing of witnesses who may be hard to locate, particularly in older cases; the search for evidence that may either support or contradict what is asserted by a witness; questions of who could have seen or done what at which particular times; the use of sophisticated police technology and databases. Those are all matters on which experienced, trained detectives with up-to-date experience of a wide range of investigations will be ideally placed to assist the commission in its task.

Clauses 18 and 19 of the Bill exist to enable the commission to harness that assistance. I would understand better the criticism that has been made of

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those clauses if they merely required the commission to hand over its examination of the case to a police force and wait for the investigators to report. However thoroughly and conscientiously the investigators applied themselves, that might well not inspire sufficient public confidence in the conduct of the case as a whole. But that is emphatically not the approach in the Bill. To begin with, the commission will have the power to approve or to veto the choice of investigating officer; to require that officer to be appointed from an outside force; and, if your Lordships agree to amendments which I have tabled in order to strengthen the commission's powers still further, it will have the power to approve or to veto the choice of force if it has stipulated an outside force.

The commission's powers go further, however. The Bill empowers the commission to direct what inquiries should be made, and to supervise the conduct of those inquiries. What will those powers mean in practice? The answer is that they can be exercised as flexibly as the commission sees fit. The commission may direct, for example, that a particular witness be located and interviewed, and that particular questions be put to that witness. By way of supervision, a member of the commission or of its staff will be able (if they see fit) to attend such an interview; to accompany the investigating officer to an examination of the scene of the crime; to hold a conference with the officers at which the progress of the investigation is reviewed and its emerging results discussed—indeed, as the Bill precisely says, to take


    "any steps which they consider appropriate"

for supervising the inquiries which are being made on the commission's behalf.

Those are entirely new powers in miscarriage of justice cases. For sound constitutional reasons, it is not open to the Home Office to take such an active part in investigations. But no such constraints need bind the commission, and that is one of the major advances secured by this Bill, powerfully reinforcing the excellent work done by police detective officers with a new, independent oversight which will both add a fresh dimension to the pursuit of these inquiries and at the same time promote the confidence which all of us wish to see.

I find it hard to see that such an approach will not meet the needs of almost any investigation which the commission might wish to undertake where detective work is called for. Nevertheless, it would be wrong to deny the possibility that, in some exceptional circumstances, the commission might itself wish to take a statement from a witness privately, for example. There are good reasons why in the general run of criminal cases we look normally to trained police officers to undertake the questioning of witnesses especially where there may be any possibility of the witness incriminating himself or another person. Nevertheless the commission will have among its members and staff people such as lawyers and those with investigative experience who could properly undertake such a task if it became necessary; and nothing in the Bill precludes the commission from proceeding in that way. That is

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already clear from Clause 20 in the Bill as it stands; but in order to put the matter absolutely beyond doubt, I have tabled Amendments Nos. 43 and 44.

I have sought to explain that the powers in Clauses 18 and 19 are an important part, but only a part, of the means which the commission will have at its disposal to investigate cases. The powers to appoint an investigating officer, and then to supervise and direct that officer's inquiries, are necessary because, without them, the commission would not be in a position to harness police expertise to its advantage. But that, as I have explained and as Clause 20 makes clear, does not preclude the commission from pursuing other means of investigation according to the needs of the case, and doubtless in many cases it will wish to use a variety of means to examine the matter. With respect to the noble and learned Lord, Lord Scarman, it is unnecessary to provide for the commission to appoint its own staff as investigators, because that is what its staff are there to do. If the commission needs to look for assistance outside itself and other than under the terms of Clauses 18 and 19, then it will need to contract the service required and will be able to settle the terms of the assistance in the contract.

The noble and learned Lord, Lord Scarman, raised a number of other points. He said in particular that other investigators would not have police powers. As the noble and learned Lord said, the commission has important powers of its own but, for reasons that I shall explain when we come to Amendment No. 40, I doubt whether it is desirable to confer coercive powers on people other than police officers when those can be exercised by the police themselves. Indeed, such powers are not often needed in miscarriage of justice cases.

The noble Lord, Lord Merlyn-Rees, and the noble Viscount, Lord Runciman, referred to having trained investigators on the commission's staff. The Government intend that there should be three or four people with investigative experience on the commission's staff. Therefore, we see no reason why they should not be, for example, police officers on secondment; but we believe that such people would be best used in assisting the commission to plan, direct and supervise investigations by the police and others rather than conducting investigations for the commission itself.

Reference has been made to rare cases which could require an independent investigator. The police have an excellent track record in investigating alleged miscarriages of justice. The cases of the Birmingham Six, the Guildford Four and the Darvell Brothers are all examples of convictions quashed following referral. Patient, thorough police work turned up the evidence in each of those cases to justify the referral. We are not aware of any case in which an investigation by the police at the Secretary of State's request has been anything less than thorough and effective.

A major change from the current arrangements will be the use of police investigators working under the active direction and supervision of the commission. That, and the power of the commission to insist on an outside force, provides the necessary independent element in such investigations. The difficulty with complex and rare cases is that those are just the cases

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in which we need police expertise. Their knowledge is necessary if such cases are to be investigated properly. We believe that, with the supervision of the commission, we are providing the right balance to ensure both the independence and the expertise that is required.

The noble Viscount, Lord Runciman, referred also to cases of a miscarriage of justice attributable to police misconduct. No one denies that there has been misconduct in some original police investigations, but we are not aware of any case in which there has been malpractice when the police have looked into a case again at the request of the Home Office—that is even without the commission's powers to direct and supervise.

Having explained the approach in the Bill in some detail, it is important that I should also make clear what the Bill will not do. The Bill does not provide for the establishment of a sizeable in-house team for the purpose of carrying out the sort of detailed, on-the-ground investigations that are currently carried out in a number of these cases by police forces. There are reasons both of practicality and of principle for our decision not to put forward such a proposal.

The advantage of the approach in the Bill is that detective officers based in police forces can, in effect, be co-opted to work for the commission but on a flexible basis. Suitable officers can be made available to the commission and then returned to their general duties, with the minimum of delay and disruption at either end of the process. If, by contrast, an in-house team were to be set up, how large would it have to be in order to be both flexible and effective? By what criteria would it be decided that a case should be looked into by the commission's own force of investigators rather than by officers serving in a police force? Would not there be a danger of a two-tier system developing, with applicants whose cases were investigated by the "ordinary" police being left unsatisfied because they had not been attended to by the in-house team? And what would be the effect on police investigators in the cases they were permitted to investigate under the commission's superintendence, knowing that the applicant would be likely to regard that inquiry as a second best option? On top of those difficulties, the creation of an in-house force large enough to make any kind of impression would add significantly to the administrative and resource burden on the commission in terms of accommodation and other overheads, personnel management, training and discipline, whereas under the Bill those responsibilities would remain in police forces which have to exercise them in any case.

There are also good reasons of principle for not divorcing the responsibility for police work in miscarriage of justice cases from criminal investigation generally. If we were to do that, I believe we should be sending entirely the wrong message to police forces. We should be saying to the police service, "Your job is to investigate the original offence as well as you can and not to worry too much about what happens after that. If something has been missed or gone wrong, whether it was your fault or not, don't worry. It is not your responsibility to help sort it out, although we may allow you to try your hand at some of the more routine cases".

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We must ask ourselves the question: which approach is most likely to help prevent miscarriages of justice in the future? Is it the approach which shuts police officers off in some of the most important cases, telling them this is a specialist matter and not for them, or is it the approach in the Bill whereby detective officers from police forces can work closely as part of a team with the independent members and staff of the commission, benefiting from their guidance and supervision and learning lessons which they can apply in their general criminal work?

None of that is to deny that the commission will benefit from having some in-house investigative expertise. We intend to provide for that. Experienced investigators employed directly by the commission will help it to make the best use of its powers and facilitate communication between the commission and outside investigators, working, as it were, on the nitty-gritty of inquiries on the ground. But once again we have to confront the question of what will best serve the commission's purpose. Is it to have a group of experienced investigators who are for ever away from the commission, buried in detailed inquiries in one or two cases, or will their contribution be more effective if, as we propose, it takes the form of advice to the commission on a wider range of cases according to the needs and priorities of the moment?

I am grateful to the noble and learned Lord, Lord Scarman, for initiating this debate on one of the most important facets of the Bill. I have sought to explain how the Bill empowers and enables the commission to investigate cases by a number of different means, and I have explained why we do not believe a sort of shadow police force located in the commission would be either practicable or helpful to the cause of preventing and remedying miscarriages of justice.

Costs were mentioned by the noble Lord, Lord Rodgers of Quarry Bank. As I said in a previous debate on the Bill, it is difficult to estimate the cost of an in-house investigative team as it is difficult to establish its size or training needs, but it is clear that it would add to the commission's costs in terms of staffing, accommodation and training if it were to take on its own staff. So whatever the costs, and whatever concerns the noble Lord has, we know that that proposal would add to those costs.

The team that was taken on directly would have to be given extensive training in investigative work and kept in touch with any new developments. That training would have to be given by the police. The commission would have to pay the cost of the training, while the training would place an extra burden on the police. It would not be as cost effective as using police officers who would receive that training as part of their job.

The noble Lord, Lord Rodgers, said that it is just a matter of transferring costs from the police to the commission: we just hand one job over to the other body. It is not as simple as that. Where police forces investigate, they use officers whose training, accommodation and other such costs are already paid for as part of the force's general costs. An in-house team in the commission would require all of those costs to be borne afresh, in addition to the costs of the police forces.

The noble Lord, Lord Rodgers, said also that the Government are merely following orthodoxy. The noble Lord is known for his hostility to government and

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government thinking, but that is a remarkable statement given that the Bill gives the commission powers to direct and supervise police officers, which the Home Office does not have now and which have not existed before in these miscarriage of justice cases.

I hope very much that as a result of these explanations the noble and learned Lord will not consider it necessary to press his amendment. However, if he were to do so, I have to say that it would make both an unnecessary and a misleading addition to the Bill, and I therefore cannot advise the Committee to agree with it.


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