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Lord McIntosh of Haringey: My Lords, the Minister was good enough to write to me on Friday to make her apologies for tabling the amendment late and she gave me a full explanation of it and of the existing situation. I am grateful to her for that. She will recognise however that that is not the same thing as making it available to any noble Lord who may be interested and I hope that that situation does not occur in the same way again.

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We accept the Minister's arguments that these amendments relate to the tidying up of a rather awkward construction of Section 23 of the 1968 Act and a comparable Act for Northern Ireland. It is important that the phrase "capable of belief" maintains its primacy, as it did in the original version of Clause 4 of the Bill. We accept that the conditions (a), (b), (c) and (d) in subsection (2) erode the "shall" provision at the beginning of that section. We accept that there is no major difference in the actual procedure of the courts as it is today, which we believe to be satisfactory.

Lord Taylor of Gosforth: My Lords, I am grateful to the noble Baroness for tabling this amendment, with which I entirely agree. Perhaps I can briefly say why.

As many of your Lordships will know, Section 23 of the Criminal Appeal Act 1968 governs the admission of fresh evidence by the Court of Appeal. As the section stands, fresh evidence can be admitted either under subsection (1), which provides a power to admit fresh evidence if it is necessary or expedient in the interests of justice, or under subsection (2) which imposes a qualified duty to receive fresh evidence in certain restricted circumstances. I say "qualified" because the court must be satisfied that the evidence would, if received, afford a ground for allowing the appeal; it must be satisfied that it is credible and admissible, and that there was a reasonable explanation for the failure to adduce it at the trial.

The case law has now reached the position that the duty to admit evidence in pursuance of Section 23(2) is effectively subsumed within the requirement in subsection (1) to satisfy the interests of justice. New Clause 4 will replace this rather awkward two-pronged provision with a unified test for the admission of fresh evidence which will be both clear and comprehensive. The new test will eliminate the rather sterile arguments which have been raised over the years about the distinction between and the application of the power in Section 23(1) and the qualified duty in Section 23(2), which I have just described.

I should emphasise to the House that this amendment will in no way lessen the likelihood of fresh evidence being received on appeal. The duty in Section 23(2) is, in my view, mandatory in appearance only. I and the judges whom I have consulted on this have been able to think of no occasion on which evidence would be received under the present Section 23 which would not be received under the new section contained in new Clause 4. It is therefore our view that the interests of justice will be better served by retaining the discretionary power to admit fresh evidence in its current form but replacing subsection (2) with a set of criteria by reference to which the court should be required to test evidence when deciding whether or not to receive it on appeal. I support the amendment.

On Question, amendment agreed to.

Clause 13 [General provisions about references]:

Baroness Mallalieu moved Amendment No. 5:


Page 10, line 40, after ("raised") insert ("or not adequately raised or not adequately considered").

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The noble Baroness said: My Lords, in moving Amendment No. 5 I wish to speak also to Amendment No. 6, which is consequential. I make no apology for returning to this small but important amendment which I withdrew after debate in Committee. If the amendment is not accepted I believe that there will be a small but significant number of cases in which a miscarriage of justice has occurred which the commission recognises as such but is powerless to refer on to the Court of Appeal—in other words, which it has no means of putting right.

As it stands, Clause 13 allows the commission to refer a case on to the Court of Appeal only when two hurdles have been cleared. First, the commission must consider that there is a real possibility that the verdict or finding is unsafe and would not be upheld if a reference were made; and, secondly, the argument or evidence which leads the commission to that conclusion has never been raised before in earlier proceedings. Amendment No. 5 allows the commission to refer a case with a verdict or finding which it believes has a real possibility of being unsafe when the evidence or argument was raised or considered, but only inadequately at the earlier proceedings.

As an illustration, this will cover the case where the lawyer was guilty of incompetence, or, perhaps rather more commonly, of inadvertence, or made an error of judgment in his conduct of the case, or failed to appreciate the significance of evidence or an argument at the time. Lawyers make mistakes. When a man or woman is wrongly convicted as a result of such a mistake it would seem to be wrong that the commission should be prevented from sending that case on to be properly considered and, it is to be hoped, corrected.

When I raised this matter at the Committee stage the noble Baroness in answer raised two essential objections to the amendment. First, she said that the commission should not be required to review decisions taken by the appropriate courts. In other words, to use her phrase, the commission must not be allowed to usurp the role of the court. I agree totally with that. This amendment would do no such thing. Where an argument or evidence has been properly raised and properly considered by the earlier court the commission will not be permitted to refer the case back. It is only when the argument was not properly advanced or considered in such a way that the court has been able or willing to give adequate consideration to it that the commission would be permitted to make such a reference.

Secondly, the noble Baroness said that the commission would receive a great number of applications which were in effect complaints from prisoners about the way in which their lawyer had handled the case, claiming that he or she had done so inexpertly, inadequately or ineffectively. That, I suspect, will be the case in any event. I anticipate that the commission will receive a large number of applications based upon those lines. As it stands, unless there is new argument or new evidence, the applicant must be turned down, whatever the merits of his or her complaint. The amendment simply enables the commission, in a case where it believes it is likely that the conviction is unsafe

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and in its opinion the lawyer did not adequately advance the argument to the court or the court did not give proper consideration to it, to send that case for that proper consideration. I simply ask: what is wrong with that?

Worry about the pressure of numbers of applications to the commission must not be allowed to lead the commission to be put at its inception into a straitjacket which will prevent it from doing the job which it is being set up to do—in other words, to identify and try to correct the mistakes which have led to miscarriages of justice.

The Royal Commission in effect gave birth to this piece of legislation. This very aspect of the Bill was, I understand, something which occupied the Royal Commission for a considerable period of time. At the Committee stage of the Bill the chairman of the Royal Commission, the noble Viscount, Lord Runciman of Doxford, who is unable to be here today, spoke in support of the amendment. Perhaps I may briefly remind the House of what he said:


    "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 ... that there is no downside to extending the clause by this small but important amendment".—[Official Report, 8/6/95; col. 1514.]

The amendment also received the support of the noble Lord, Lord Hutchinson of Lullington, who spoke with vast experience of the criminal law.

Having had the opportunity to look at both what was said in Committee on 8th June and to consider the matter again in the interim, I hope that the noble Baroness will today feel able to consider making what I believe to be a small but very important alteration to the Bill. I beg to move.

Lord Renton: My Lords, it may seem a minor point, but I think it will be a difficult matter of interpretation to decide what comes within the meaning of the word "adequately". When someone has represented an accused personally in court that representative may have done his best but he may not have been very competent. He may not have done justice to the point that he was trying to raise. Does that mean that he has performed adequately? He may have taken quite a long time. I should have thought that this is a very difficult matter for the commission to decide, especially as the proceedings in question will not have taken place before the commission.

The word "adequately" applies not only to the question of raising the matter but to the question of it being "adequately considered". That raises a doubt in my mind as to whether Amendments Nos. 5 and 6 will be of advantage or will cause confusion. If we leave it with the word "raised" then the commission will have a pretty wide discretion. It might be better to leave matters like that instead of risking the confusion that could arise over arguments as regards the meaning, in particular circumstances, of the word "adequately".

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6 p.m.

Baroness Blatch: My Lords, the objective of Clause 13(1) is to set broad conditions on the power of the commission to refer convictions, verdicts and findings to the courts. There are two essential requirements. First, there must appear to be a "real possibility" that the conviction, verdict or finding will not be upheld in the appeal which would follow a reference. Secondly, there must appear to be some evidence or argument not previously raised in the courts which now gives rise to that "real possibility" of a successful appeal.

The purpose of these conditions is to guide the commission, and those who put forward cases to it, as to the sort of circumstances in which it will be appropriate for the courts to hear a further appeal as a last resort. They are reasonable criteria, given that cases considered by the commission will usually have been twice before the courts already. These criteria serve to discourage applicants from believing that the courts may be persuaded simply to go over old evidence again and come to a more favourable view, which is one of the points made by my noble friend Lord Renton.

Amendment No. 5 seeks to expand one of these criteria, but for the reasons which I gave in Committee, I do not believe that it would be right to add to Clause 13(1) in this way. The amendment would, it seems to me, risk burdening the commission with many applications in hopeless cases where the applicant nevertheless represented that the jury or the Court of Appeal could not have considered his arguments properly. Of course, the commission would not be bound to refer these cases, but it would be required at least to go through the process of considering for itself whether the arguments had been adequately presented or considered at trial or on appeal. This would be an unfortunate requirement on the commission because it would be bound to reappraise the quality of the courts' previous judgments in a way which the conditions in the Bill as it stands do not.

Although I see difficulties with this amendment, I do understand the force of some of the concerns which the noble Baroness has expressed. In particular, it is not at all the intention of this Bill to prevent the courts from receiving a reference in any case where there is substantial ground for them to look again at a conviction. I agree with the view that in setting reasonable criteria for references we should be doubly careful to ensure that references are not inadvertently prevented where injustice would result. However exceptional, there may be circumstances in which a conviction plainly ought to be referred and yet there was doubt about whether this could be done even under the very broad criteria in Clause 13(1) (b). I therefore propose, so far as Clause 13(1) is concerned, to bring forward at Third Reading an amendment which would preserve the essence of the present criteria, while ensuring that they were not so tightly drawn as to risk excluding this sort or exceptional case.

I take a different view of Amendment No. 6 which would relax the parallel condition in Clause 13(2) governing the reference of sentences. That is the point: here we are talking about sentences. Having regard to the previous debates in which this provision was

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criticised for not being tight enough, I see no need to relax it in the way now proposed. In particular, your Lordships will note that in relation to sentences in Clause 13(2) we have the concept of "information", which is a wider concept than "evidence". The amendment now proposed would be unhelpful for the same reason as in relation to convictions; that is, it would encourage questioning of the quality of the courts' reasoning and judgment. It would, I fear, give rise to many of the problems which the noble Baroness was concerned about when she moved to tighten the Clause 13(2) criteria in Committee.

This has been a helpful debate. It is important that the criteria for references should fully serve the purposes of the new arrangements in the Bill—above all, of course, the correction of miscarriages of justice. I shall bring forward at Third Reading an amendment to Clause 13(1) which will aim to meet some of the concerns that have been expressed. But I remain of the view that the balance in Clause 13(2)—that is to say, on sentences—is right as it stands. In that light, I hope that the noble Baroness will not see any need to press the present amendments.


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