§ The Secretary of State for Scotland (Mr. Bruce Millan)
With your permission, Mr. Speaker, and that of the House, I should like to make a statement.
On 19th May 1976, I made a statement in the House of Commons informing the House that, in the light of material, including fresh information, available to me, I was advising Her Majesty to 455 exercise the Royal Prerogative of Mercy to grant a free pardon to Patrick Meehan who had been convicted in October 1969 of the murder of Mrs. Rachel Ross.
Lord Robertson, in his summing-up to the jury on 1st December in the case of Ian Waddell, made remarks which were strongly critical both of my decision to advise Her Majesty to grant a free pardon to Patrick Meehan and of the use of the Royal Prerogative of Mercy in general.
I have now studied his remarks in their context and I reject his criticisms. The existence of the Royal Prerogative of Mercy is an integral part of the constitutional system which exists to protect the citizen against a possible miscarriage of justice. The Secretary of State should not hesitate to recommend the exercise of that power if he has substantial grounds for believing that a miscarriage of justice may have occurred for which there is no remedy available in the courts. This was the basis on which I acted in the Meehan case.
In taking such a serious decision, I was not "paying attention to clamour" as might be implied from Lord Robertson's remarks. I came to the conclusion, on the information available to me, not all of which was before the court in the Waddell trial, that it was no longer right that Patrick Meehan should be held in prison on conviction of the murder of Mrs. Ross. That remains my view.
Lord Robertson stated that I did not exhaust the "obvious process of law" by referring the case of Patrick Meehan to the Court of Criminal Appeal. A reference by me under Section 263(1)(a) of the Criminal Procedure (Scotland) Act 1975 is, of course, the only process by which the case could have been brought again to a court of law for judicial determination.
As I explained on 19th May, I examined this possibility before deciding to advise the exercise of the Royal Prerogative. But, in terms of that provision, the court is limited in the extent to which it can consider a case afresh since it must hear the reference as though it were an ordinary appeal against conviction. Having regard to the nature of 456 the considerations relevant to a decision on the case, I reached the conclusion that my powers of reference back were inappropriate to it.
The decision to recommend the exercise of the Royal Prerogative of Mercy in the case of Patrick Meehan was mine and mine alone. The decision to prosecute Ian Waddell, which depended on different considerations, was not mine but a matter solely for my right hon. and learned Friend the Lord Advocate.
I am aware that during the Waddell trial questions were raised as to what was the precise effect in law upon a conviction of a grant of Free Pardon in the exercise of the Royal Prerogative of Mercy. These questions can be authoritatively determined only by a court of law. But it is generally accepted—and this was the view stated by Lord Dilhorne in the other place on 19th March 1963, when he was Lord Chancellor—that it means that the conviction and all its consequences are wiped out and that persons who receive free pardons are to be regarded as being in the position of having been acquitted at trial.
I have only this morning received a full copy of the judge's charge to the jury in the Waddell trial. I propose now to consider the issues arising from the two trials and whether, and in what form, further inquiry might throw new light on any of these issues.
§ Mr. Buchanan-Smith
We are grateful to the right hon. Gentleman for making what is an important statement. Leaving aside the timing of Lord Robertson's remarks, surely Lord Robertson was right that, where the defence was based on Meehan having committed the crime, the charge to the jury to disregard the effect of the pardon was, indeed, a right one? Secondly, is the right hon. Gentleman aware that, despite the gloss that he has put on it, the whole matter of the effect of the pardon is one that requires still further clarification?
Thirdly, is the right hon. Gentleman also aware that because of the general concern over the conduct of the Crown Office in this case, and its handling of it, we would expect a statement from the Lord Advocate? Finally, can the right hon. Gentleman be more specific about his reference to an inquiry?
§ Mr. Millan
I am not sure that I followed the hon. Gentleman's first comment. With regard to the hon. Gentleman's second comment, I have said that the precise effect of a pardon is a question which can be authoritatively determined only by a court of law. I thought that it would be helpful to the House, and helpful generally, if I were to give a statement of the view expressed by Lord Dilhorne, as Lord Chancellor, in the other place in March 1963.
The hon. Gentleman's third question is in some respects a matter for the Lord Advocate rather than for me. The Crown's handling of these cases is a matter that I would consider in the context of the possible inquiry. On the inquiry itself, the House will appreciate that this is an extremely difficult matter to decide given that there already have been two trials. I do not wish to make a quick decision. But I understand that there is a great deal of public concern about a number of matters arising out of these trials and I shall come to a conclusion as soon as I possibly can.
§ Mr. David Steel
Will the Secretary of State accept that the Liberals, for their part, accept his statement without equivocation? It should be welcomed by the House as a whole.
We wholly reject the underlying claims to judicial infallibility which seemed to lie behind so much of Lord Robertson's summing up. May I ask the Secretary of State whether his concluding remarks in the statement means that he has not ruled out the possibility of a full inquiry which would include the circumstances leading to the prosecution of Mr. Meehan in the first place?
Lastly, would the right hon. Gentleman confirm that in his rôle as Secretary of State he considers that he remains fully answerable for his actions to this House and not to any of Her Majesty's judges?
§ Mr. Millan
I am grateful for what the hon. Gentleman said in his concluding remarks and also for what he said at the beginning. The question of an inquiry is one of considerable difficulty. Obviously questions pertaining to the circumstances before the original prosecution was brought against Meehan are matters that I am considering in the context whether there ought to be an inquiry. I do not 458 want to be drawn further today into the possible coverage, or terms of reference, of an inquiry if I were to decide to have one.
§ Mr. William Ross
Is my right hon. Friend aware that we welcome his statement and regret that it was necessary? It cannot but be detrimental to Scottish justice for a judge when directing a jury in a very important trial so to misdirect it about the duties and rights of the Secretary of State in recommending to Her Majesty the exercise of the Royal Prerogative. Will my right hon. Friend seek a meeting with the Lord President of the Court of Session, so that the Lord President may remind his colleagues on the bench that the exercise of the Royal Prerogative is, and I trust will remain, an essential safeguarding part of our legal system?
Will my right hon. Friend ask the Law Society of Scotland to examine and report on the question of confidentiality, when a solicitor who represents two men can have in his possession from one man an alleged confession to the murder for which his other client has been found guilty?
My other question, which I consider to be a matter of growing seriousness, concerns the BBC's practice of pre-recording statements, interviews and comments from various people connected—and not too well connected—with a trial, before the end of that trial, statements and so on which, in the light of the ultimate verdict and summing up, may prove to be widely irresponsible and inaccurate.
§ Mr. Millan
I shall look into my right hon. Friend's last point, although it may concern matters of law and not matters for me as Secretary of State.
I understand that the question of confidentiality between solicitor and client is not just a matter of professional practice or a question of the view that the Law Society of Scotland may take. There may be legal implications as well. But, as I said when I made my original statement in May, I would welcome clarification, as I think the House would.
On the question of the Royal Prerogative, I hope that I have made clear the Secretary of State's duty in such a case. I had not understood until about a week ago that there was any question about the validity of the Royal Prerogative.
§ Mr. Fairbairn
I declare an interest, in that I was Mr. Meehan's counsel at his trial and impeached Mr. Waddell as the offender at the trial, which impeachment was removed from consideration by the trial judge at the time. I commend the probity, judgment and correctness of the Secretary of State's behaviour in commending to Her Majesty that she use the Royal Prerogative of Mercy according to law.
May I ask the right hon. Gentleman to repeat in the House that, whatever Lord Dilhorne may have pronounced as the law, the recommendation was that Meehan's conviction should be expunged and that he stands innocent of that crime? In that connection, will the Secretary of State use his good offices to recommend to Her Majesty that the wording of the exercise of the Royal Prerogative be put in such form that it does not mislead such intelligent men as Lord Robertson?
May I also ask that nothing that Lord Robertson has said, done or thought shall in any way diminish the proper damages which Mr. Meehan will receive for his wrongful conviction and imprisonment? Will the right hon. Gentleman consider the very serious constitutional issues where a judge in a privileged position is able to defame the reputation of a man whose conviction has been expunged, accuse him from a privileged position, without evidence, of defaming police officers, and gratuitously defame the holder of the office of Secretary of State and the Lord Advocate?
In view of the very serious evidence at the trial that there was in the hands of the police, evidence for which the defence asked and which was suppressed, may I ask that there will be a full public inquiry in order that we may ensure, without prejudice to the trial of any police officer who may be charged, that justice is seen to be done and is openly displayed on the full facts, which the Lord Advocate, because of the rules of evidence, could not bring out. May I ask that the whole matter may be put before the public, so that they may see the rightness of the course which the Secretary of State took.
§ Mr. Millan
As I have said, I am considering an independent inquiry.
I probably said in my original statement this afternoon all that it is necessary 460 for me to say about Lord Robertson's charge to the jury.
On the question of damages to Patrick Meehan, I shall take advice from an independent assessor. I had taken preliminary action before the Waddell trial, and I now want to bring that matter to a conclusion as soon as I can.
I gather that the wording of the Prerogative is a matter of considerable antiquity and that to change it would require legislation. I am not sure that that is necessary, because I think the general understanding has been that a person who obtained the Royal Prerogative was in exactly the same position as he would have been if he had been acquitted at the trial. The hon. and learned Gentleman has confirmed that my actions over the recommendation of the Royal Prerogative were fully within the law.
§ Mr. Buchan
Many people will not only welcome my right hon. Friend's statement but will congratulate him on it and on his earlier advice on the Royal Prerogative. Will my right hon. Friend place in the Library of the House the judge's charge to the jury? Apart from the judge's words on the precise definition of the pardon, it caused many worries with the additional remarks, especially the extraordinary remark that a pardon could be given only if an offence had been committed, which would suggest that an innocent man could not be pardoned. Would it be worth while considering the possibility of refresher courses for some of Her Majesty's judges? Does my right hon. Friend accept that the matter cannot rest here? I hope that he will push forward with his idea of an inquiry which I hope will be as public as possible.
§ Mr. Millan
I note what my hon. Friend and other hon. Members have said about an independent inquiry. I shall try to make available to hon. Members a copy of the judge's charge to the jury.
§ Mrs. Winifred Ewing
I congratulate the Secretary of State on his courage in granting the pardon. He must in the end hold an inquiry, whether or not it is difficult to do so, because there is public disquiet, which will not be lessened by delay. That disquiet is as strong as it was at the time of the Oscar Slater case, 461 when it arose over witnesses for the defence who were in the waiting room but were not called. The disquiet this time is over the Crown witnesses in the Waddell case who were in the waiting room and were not called.
The longer the Secretary of State delays the more the disquiet will grow. The inquiry will have to be held in the end, however painful a decision it may be for the Secretary of State. I urge him to grasp the nettle and to take the decision early.
At the end of his statement, the Secretary of State said that he proposed to consider the issues. As a member of the legal profession, I never thought that I should have to say it in the House, but one of the issues must be what one does to discipline a judge who holds his function ad aut vitam aut culpam. If the remarks by Lord Robertson are not an example of culpam, I cannot imagine what on earthculpamin a judge is. In the long history of Scottish judges, we have rarely had a judge removed, but I suggest that this is a case where Lord Robertson's removal from the Bench should be seriously considered by the Secretary of State.
§ Mr. Millan
The hon. Member for Moray and Nairn (Mrs. Ewing) has made a number of remarks which are not for me to comment on. I shall take the decision about an inquiry as soon as I reasonably can. I recognise that there is public disquiet and that that public concern should be allayed.
§ Mr. Abse
May someone from outside Scotland put a question? In view of the heavy criticism that has already been made against the judiciary, indicating considerable conflict between legislators and the judicature, would the Minister agree that the problem has arisen, as he has indicated, because of the failure of the courts to have powers to review cases in a form and manner which would enable the Minister to refer them for proper surveillance and scrutiny?
Unless the Secretary of State, after discussion with other Ministers, is prepared to introduce legislation to change the powers of the courts, we could have other instances in which the murky underground of Scotland could so manipulate 462 events that there could be this unseemly picture which we have seen this afternoon, with attacks on the judiciary which may or may not be as well founded as they at first appear.
Would it not be advisable for consideration to be given to the powers available to Scottish courts so that we do not have the same miserable type of episodes and occurrences as are now taking place in the House?
§ Mr. Millan
I am not aware of having made any attack on the judiciary and I would not wish to do so. The question of criminal procedure in appeal has already been considered by the Thomson Committee on Criminal Procedure in Scotland, which reported a considerable while ago. I am willing to look at its recommendations and to consider whether the law should be changed but this is a very difficult field and the Thomson Committee was itself divided on its recommendations.
§ Mr. Hooson
As criticism by a judge of the exercise of the Royal Prerogative is a very important constitutional matter, can the Minister tell us, on a matter of procedure, whether, when he recommended the pardon, he informed the Lord President in Scotland of the grounds on which the recommendation was made?
§ Mr. Millan
I do not have to give reasons for my decisions, even to the Lord President. But I think he was aware of the decision before it was announced. The trial judge was dead and therefore could not be consulted, even informally. I have been asked once or twice this afternoon to raise some matters with the Lord President and I am certainly willing to talk with him about some points.
§ Mr. Lambie
In view of the statement made today by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), how does the Secretary of State intend to deal with the allegations made against the Ayrshire police by the hon. and learned Gentleman and his less reputable friends in following a campaign of vilification against the police?
§ Mr. Millan
Allegations against the police, some of which were rehearsed at the Waddell trial, are among the issues 463 I want to consider before making a decision about an independent inquiry.
§ Mrs. Winifred Ewing
On a point of order, Mr. Speaker. Did I hear the hon. Member for Central Ayrshire (Mr. Lambie) refer to the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) and his "less reputable friends"? Could we have clarification? To whom was he referring?
§ Mr. Speaker
Order. I do not think that the hon. Lady the Member for Moray and Nairn (Mrs. Ewing) heard that. The hon. Lady may have heard it but I did not. Did the hon. Member for Central Ayrshire (Mr. Lambie) make that remark?
§ Mr. Fairbairn
Further to that point of order, Mr. Speaker. May I assure the House that I have no friends? But if I am compelled to refer to the hon. Member for Central Ayrshire (Mr. Lambie) as a friend, he is undoubtedly one of my less reputable ones.
§ Mr. Thompson
The Secretary of State said that legislation would be needed if we were to change the title for the exercise of the Royal Prerogative as it affects a person now judged to be innocent. Would the Minister accept that if the Government brought forward a short Bill such as the Returning Officers (Scotland) Bill to remove this defect in the law—and I am sure that lawyers could find better words to express the meaning of the free pardon—the House would give a rapid passage to the Bill in order to remove any further doubt on this matter?
§ Mr. Millan
I am doubtful whether the House in its present mood would give a rapid passage to anything. There would be some difficulty in this but I will consider it.
§ Mr. Canavan
Is the Minister aware that many people who are concerned about the administration of justice fully support his original decision to release Patrick Meehan and that they support everything the Minister said in his statement this afternoon? They absolutely deplore criticisms levelled at the Secretary of State by Lord Robertson. In view of all the circumstances, would it not be appropriate for this interfering busybody of a judge to apologise to the Secretary of State or else to resign?
§ Mr. Robert Hughes
Since it is clear that the breaking of the confidentiality rule played a large part in the Minister's original decision, does he now consider that this is a matter which ought to be discussed by the Royal Commission on the Law in Scotland?
§ Mr. Millan
It is within the terms of reference of the Royal Commission. If the Royal Commission cared to consider it and to take evidence on it, all of us would be very grateful.
§ Lord James Douglas-Hamilton
I apologise to the Secretary of State for missing part of his statement. Will the Minister ask the Government to introduce legislation so that when evidence of a new character comes to light, showing that a person may be innocent, there will be a procedure for a retrial? Such procedure exists in England but not in Scotland, and it would be to the benefit of Scotland to introduce it there.
§ Mr. Millan
Some of the matters were dealt with by the Thomson Committee, but there are some very difficult points, and I do not think that it would be sensible for me to pronounce on them this afternoon in any authoritative way.
§ Mr. Douglas-Mann
Will the Secretary of State ensure that the Royal Prerogative is not exercised less frequently in future as a result of this criticism? Will the Minister confirm that it is proper for the Royal Prerogative to be exercised when real doubts arise as to the justice of a sentence passed. There is a possibility, and it is right that occasionally a guilty man should have the Royal Prerogative exercised in his favour.
§ Mr. Millan
I intend to discharge the duties laid upon me in recommending the 465 Royal Prerogative in the same way in the future as I have tried to do in the past.
§ Mr. Speaker
Since there has been criticism of the judiciary, I should tell the House that what has guided me in the control of the debate has been what my predecessor said on 4th December 1973 when he quoted Lord Atken, whom he described as one of the great judges of the century, who said:But whether the authority and position of an individual judge, or the due administration of justice is concerned no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith in private or public, the public act done in the seat of justice. The path of criticism is a public way, the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men."—[Official Report,4th December 1973; Vol. 865 c. 1092.]That has been the tone that I have tried to see adopted this afternoon.