§ Order for Second Reading read.4.21 pm
§ The Secretary of State for the Home Department (Mr. Michael Howard)
I beg to move, That the Bill be now read a Second time.
One of the most important responsibilities of any Government is to ensure that their criminal justice system is fair, efficient and effective—fair towards all those affected by it, efficient in focusing on the issues that really matter at trial, and effective in bringing about the acquittal of the innocent and the conviction of the guilty.
The Bill is intended to meet those aims. Like the Criminal Justice and Public Order Act 1994, it is designed to restore the balance in our criminal justice system—to make life tougher for criminals and to improve the protection of the public. It implements proposals made in three consultation papers that we issued last year. More generally, it represents our response to a number of recommendations made by the royal commission on criminal justice in its 1993 report. The Bill's most significant provisions extend to Northern Ireland. Also, I am pleased to say that it implements the last of the 27 points that I announced in October 1993 to strengthen the fight against crime.
The most important provisions in the Bill are those dealing with prosecution and defence disclosure. The current arrangements require too much of the prosecution and too little of the defence. They do not serve the interests of justice and are in need of reform.
At present, the prosecution must disclose to the defence any material that may possibly be relevant to an issue in the case, unless the material is sensitive and a court rules that it may be withheld. In contrast, with a few specified exceptions, the accused need not disclose anything about his defence before the trial.
The current law has given rise to serious problems. The accused can request the disclosure of reams of material, whether or not it has any relevance to the defence that he proposes to advance at trial. That places heavy burdens on the police in particular.
It is also difficult to protect from disclosure sensitive material, such as the identity of an informant. The current rules oblige the courts to order disclosure in cases where the actual relevance of sensitive material may be marginal at best. An adverse ruling requiring the disclosure of the identity of an informant may place the informant's life in danger. All too often, the prosecution must abandon the case, however strong the other evidence may be.
Let me give an example. Three individuals were arrested in possession of a number of incendiary devices. An issue arose subsequently about the disclosure of intelligence files held centrally by the police, on the organisation to which the defendants belonged. None of the information was to form part of the prosecution case at the trial, but the trial judge ruled that the files should be disclosed to the defence. Since that would have compromised future investigations, the prosecution decided to offer no evidence, rather than comply with the 739 ruling. One of the defendants commented in a statement to the media that it had been their intention to remove the contents of a vehicle and then damage it. He added:The only reason this trial collapsed was because the prosecution refused to reveal to our defence lawyers material about us held on computer by the police.The presentation of a defence at the last minute—with no advance warning to the prosecution—does not contribute to the efficient conduct of a trial. It encourages defendants to come forward with a plausible, but false, defence at a very late stage.
§ Sir Ivan Lawrence (Burton)
Before my right hon. and learned Friend leaves the subject of sensitive material, will he confirm that questions of sensitive material arise in trial after trial in the criminal courts? Does not that make a total nonsense of the part of Lord Justice Scott's report that seems to indicate that public interest immunity does not apply to criminal cases?
§ Mr. Howard
I shall be referring later to the relevance of Lord Justice Scott's report to the Bill. Perhaps my hon. and learned Friend the Member for Burton (Sir I. Lawrence) will forgive me if I do not respond to his invitation to pursue that matter at this stage.
The royal commission on criminal justice found the current arrangements unsatisfactory and concluded that changes were needed. Its proposals included the creation of a statutory scheme for prosecution and defence disclosure in stages, underpinned by subordinate legislation or a code of practice. We agree with that general approach, but our detailed proposals differ from the royal commission's in two important respects.
First, the commission's test for prosecution disclosure was very wide ranging. If anything, it would have imposed even more burdens on the prosecution and the police than the current requirements. Our scheme focuses on the likely effect of unused material on the prosecution case and on the defence case when that is known. Secondly, the proposals would have required the accused to give only a general indication of the nature of his case and would not in practice have contributed to narrowing the issues in dispute before the trial. Our scheme requires the defence to provide more detailed information so as to clarify in advance what is really at issue between the two parties. In building on the work of the royal commission, we have set ourselves the task of putting in place a system that will remove the iniquities of the current arrangements without denying the defendant access to material to which he would be entitled in the interests of justice.
We set out our proposals in a consultation paper in May last year. Many organisations and individuals representing a range of interests responded to it. There was widespread support for the Government's proposals, particularly on defence disclosure, and those proposals have formed the basis for the disclosure provisions of the Bill.
The police warmly welcomed our proposals. As the president of the Association of Chief Police Officers said,The proposals should help to reduce problems arising out of the bulk of material the prosecution currently has to disclose. It will introduce a more systematic and therefore more accountable system.We particularly endorse the principle of defence disclosure as an important and positive step which we believe will be welcomed by many working within the criminal justice system.740 The president of the Police Superintendents Association added:This Bill is a real step forward in the fight against professional crime and is another weight in the re-balancing of the criminal justice system which for too long has protected those who abuse the present arrangements.To complete the picture, the chairman of the Police Federation described the reaction of his association to the Bill in graphic terms, saying:This is a black day for the Lawyers' Angling Society. This Bill should end the farce of the gigantic fishing expedition which has become a notorious tactic amounting, in plain English, to blatant attempts to obstruct and delay justice.I come now to the detail of the disclosure provisions in the Bill. The disclosure scheme in part I would require the prosecutor to disclose to the accused unused material that the prosecutor thought might undermine the prosecution case. At the same time, he would give the accused a schedule listing all unused material that was not sensitive. In response, the accused would disclose the general nature of his case, the matters on which he took issue with the prosecution and the reasons for doing so. Defence disclosure would be mandatory in the Crown court, but voluntary in magistrates courts.
In response to defence disclosure, the prosecutor would disclose any additional unused material that might assist the defence that had been disclosed. If a dispute arose about whether there was any other material that might assist that defence, it would be resolved by the court. The Bill allows a court to draw an inference if the accused does not comply with the defence disclosure requirements.
§ Mr. Alex Carlile (Montgomery)
Will the Home Secretary clarify a point that has been of concern to the Law Society? The duty to disclose information that may undermine the prosecution case is taken to include material that would support the defence case, and there may be a grey area in between. Will the Home Secretary confirm that if, for example, the police came upon evidence that might tend to support a defendant's alibi, that would have to be disclosed, even though it may not directly undermine any piece of evidence forming part of the prosecution case?
§ Mr. Howard
With great respect to the hon. and learned Gentleman, the remarks that I have just made could not have been clearer in dealing with that specific point. That situation would not arise in the context of first stage disclosure, for the simple reason that it is not at that stage a part of the prosecution's duty to anticipate any defence that might be disclosed. But if, at the second stage of prosecution disclosure, the defence team had identified its defence as an alibi defence—to take the hon. and learned Gentleman's example—it would certainly be part of the prosecution's duty to disclose any material available to it that supported that alibi defence. That is absolutely clear from what I said—it is a clear part of the scheme that underlies the Bill.
As to sensitive material, the Bill retains the current procedure, whereby the court rules on whether it is in the public interest to disclose such material. However, the prosecutor would not need to bring such material before the court unless he thought that it undermined the prosecution case or unless it might reasonably assist the defence disclosed by the accused.
741 Part II requires the Secretary of State to prepare a code of practice for the actions of the police in relation to unused material for prosecution disclosure. It sets out the matters that may be included in the code of practice, including what material is to be preserved by the police. As now, the police would make all the material available to the prosecutor, with whom decisions on disclosure would rest. Although the code of practice is for the police, others conducting criminal investigations would have regard to it. Under the Bill, the code of practice must be subject to statutory consultation and approval by Parliament before it comes into operation.
We have prepared a draft of the code of practice and have placed it in the Library, so as to inform the debates on the Bill in the House. It may be capable of further refinement, but at the moment it represents the Government's best view of what the code ought to contain, taking account of comments by outside interests and the debates in another place.
I do not want to leave the subject of disclosure without saying something about the recommendations of Sir Richard Scott. Sir Richard makes a number of recommendations about prosecution procedures and public interest immunity. Some of those are relevant to the Bill's subject matter, and Sir Richard notes that they will have to be considered in the context of the legislation currently before the House—this Bill. We are studying the recommendations and have not yet reached a decision on them.
Without pre-empting the consideration of those recommendations, I must point out that the recommendations on prosecution procedures take as their starting point the existing law on disclosure. I think that it is widely recognised that the current arrangements are unsatisfactory and, as I explained, the Bill proposes significant changes to them. We shall therefore be considering Sir Richard's recommendations, not against the existing law, but against the provisions in the Bill. We hope to be in a position to announce our conclusions in time for changes to be made in the Bill, if changes should appear to be necessary.
As for the recommendations on public interest immunity, Sir Richard Scott comments that legislative intervention is, in his opinion, neither necessary nor, at present, desirable. In its current form, the Bill does not amend the law on public interest immunity. It preserves the existing common law rules about whether disclosure is in the public interest, and provides for rules of court to be made on the practice and procedure to be followed by the courts in relation to applications to the court and orders by the court.
During our debate yesterday, my right hon. Friend the Member for Witney (Mr. Hurd) and my hon. Friend the Member for Torbay (Mr. Allason) argued that the law on public interest immunity should be put into statute. The Government will consider that issue, and the clutch of detailed recommendations by Sir Richard Scott on public interest immunity, very carefully. As my right hon. Friend the Chancellor of the Duchy of Lancaster promised, we shall ensure that the House has an opportunity to consider those matters further.
§ Mr. Jack Straw (Blackburn)
Plainly, the Government will take time to consider the detail of the 742 recommendations made in Sir Richard Scott's report, but I wish to ask the Home Secretary specifically about the general point that Sir Richard made at paragraph K6.18, where he plainly anticipated the continuing use of public interest immunity certificates in criminal trials, but went on to say, in recommendation (ii):PII claims on a class basis should not in future be made",and distinguished between a class basis and a contents basis. Does the Secretary of State accept that recommendation?
§ Mr. Howard
That matter will be considered in the consultation exercise. Indeed, my right hon. and learned Friend the Attorney-General is seeking views on that matter and has requested those views by the beginning of May. That is a question to be considered during the consultation.
§ Mr. Howard
I give way first to the hon. Member for Swansea, East (Mr. Anderson) and then to my hon. Friend the Member for Ryedale (Mr. Greenway).
§ Mr. Anderson
The Home Secretary mentioned a consultation exercise, which obviously will take some time, so I want to ask about the timetable. Is it possible that, in Committee or on Report, the Bill will have the benefit of any conclusions of that consultation exercise?
§ Mr. Howard
I confess that that is unlikely. My right hon. and learned Friend the Attorney-General has said that he wants replies to his consultation exercise by May, and obviously it will take some time thereafter to consider the responses. I cannot, therefore, hold out any great hope to the hon. Gentleman or the House that, should we conclude that legislation is desirable in that area, such legislation might reasonably be expected to be part of the Bill.
§ Mr. Greenway
This is a genuine query to which I do not know the answer, but I hope that this matter has been considered, and will be considered as the Bill proceeds through Committee.
One of the overriding reasons why trials have collapsed is that the police have refused to give information about the identity of informers, of premises from which observations of criminal activity have been made and of those who may have been involved in surveillance. Can my right hon. and learned Friend assure the House that, when considering any changes in PII certificates, he will bear in mind the fact that the Security Service Bill will allow the Security Service to become involved in surveillance of criminals? Will he ensure that the interests and identities of members of the Security Service are protected, and that we do not end up with more collapsed trials because the legislation or the changes are not properly in place and because the courts may wish to rule that the identity of a person who has been involved in surveillance should be revealed to the court?
§ Mr. Howard
I assure my hon. Friend that certainly nothing in the legislation that is before the House or in 743 the Security Service Bill would increase the prospects of disclosure of any information of that kind or of any trial being stopped on that basis. Those matters will continue to be considered on a case-by-case basis, because a sensible decision can be made only in the context of a particular case. By indicating that the prosecution's duty to disclose is limited by referring to clear relevance to the issues in the case, the provisions will lessen the likelihood of disclosing information of that kind and of trials collapsing in those circumstances.
I refer now to the other provisions in the Bill. Parts III and IV make two important improvements to pre-trial procedures, giving effect to the proposals in the consultation paper on pre-trial hearings, which we published last year. Part III enables a judge to order a preparatory hearing in a long or complex case if he thinks that substantial benefits may accrue. The preparatory hearing would be similar to those held in cases of serious or complex fraud.
At a preparatory hearing under the Bill, the judge may order either party to provide a statement of its case. He may exercise a range of powers to narrow the issues in dispute and to assist the jury's understanding of the case. Such rulings may be appealed against, there are sanctions if either side later departs from its case or fails to comply with a requirement imposed at the hearing, and there is provision for reporting restrictions.
Part IV creates a power for a judge to make a binding ruling on the admissibility of evidence or other point of law in any case at a pre-trial hearing. That power will be available in all cases that are to be tried at the Crown court, except those in which the judge orders a preparatory hearing, when he will be able to exercise the range of powers conferred by part III. Taken together, the measures will encourage the better preparation of cases and the better conduct of the trial. Trials will be more efficient and less stressful and time consuming for jurors and witnesses.
Part V contains a range of reforms to magistrates courts procedures. Among other things, they amend the provisions on transfer for trial in the Criminal Justice and Public Order Act 1994—further amendments on transfer will be needed—they provide for the accused to give an indication of plea before a decision is taken on mode of trial, and they extend the maximum period for the remand of juveniles in certain circumstances.
Part VI of the Bill contains a number of important provisions to protect victims and witnesses and to enhance public confidence in the criminal justice system. Two of the provisions reflect recommendations of the royal commission on criminal justice. The first of them—providing for a retrial if an acquittal has been tainted by jury nobbling—gives effect to the only one of the 27 measures that I announced in October 1993 which has still to be implemented.
There can be no greater threat to the rule of law than if criminals believe that they can bully or bribe their way out of the dock. That is true whether their target is a juror or a witness. For that reason, the Bill goes further than the royal commission recommended. It will make it possible to have a retrial if an acquittal has been tainted by a subsequent conviction for interference with, or intimidation of, either witnesses or jurors. The court that convicts for the interference or intimidation offence will have to certify that there is a real possibility that the 744 original acquittal would not have happened but for the intimidation or interference. An application must then be made to the High Court for an order quashing the acquittal. Both courts will need to be satisfied that a retrial would not be contrary to the interests of justice.
The Bill also implements the recommendation of the royal commission that, as a last resort, judges should be able to protect victims or witnesses by imposing reporting restrictions on false or irrelevant allegations made during a speech in mitigation.
§ Mr. Alex Carlile
I refer to an important issue of fact. I support strongly the Home Secretary's announcement about the Bill's provision for retrials in the event of jury or witness nobbling. Does the Bill allow for a retrial when the witness or juror who has been nobbled—it is more likely to apply to witnesses—is dead?
§ Mr. Howard
I see no reason why that circumstance should eliminate the provisions or why the Bill should make specific provision for it. The Bill sets out clearly the requirements that must be met, and I do not see why it should deal with that specific circumstance. It does not provide that the witness or juror must be alive for the provisions to take effect. In that context, the provisions will clearly apply.
§ Mr. Carlile
I am grateful to the right hon. and learned Gentleman, but I obviously did not make myself clear—that is plainly my fault. A witness may be interfered with and later killed—that happens in serious crimes. Unfortunately, it is not an uncommon experience nowadays. The perpetrator of the original crime may have been acquitted as a result of that now dead witness having been nobbled. Can that acquitted person be retried under the Bill's provisions?
§ Mr. Howard
I see no reason why such a person should not be retried. The Bill's provisions are set out very clearly. Unless the legislation states that the juror or witness must be alive—and it does not—it is clear that, in the circumstances that the hon. and learned Gentleman identifies, the provisions in the Bill will apply in the normal way. I do not see why those circumstances should affect its operation.
§ Dame Elaine Kellett-Bowman (Lancaster)
As to the intimidation or killing of witnesses, many public interest immunity certificates are issued by quite junior lawyers in cases of drug smuggling or intimidation in prison. They must be laid before the court, as occurred in the recent case.
§ Mr. Howard
My hon. Friend is correct: there is a clear role for public interest immunity in those circumstances.
Most of the provisions of the Bill, including those on disclosure, apply also in Northern Ireland. The law on disclosure in Northern Ireland is similar in most respects to the law in England and in Wales, and the difficulties to which the present arrangements give rise are potentially at least as serious there as here. We have concluded that the scheme embodied in the Bill is well suited to the circumstances of Northern Ireland. Schedule 3 to the Bill contains a number of modifications necessary to tailor its provisions to the legal context of Northern Ireland.
745 I hope that it will assist the House if I give notice of the main amendments that the Government intend to bring forward at later stages of the Bill. First, we intend to table amendments to deal with the misuse of prosecution material that is disclosed to the accused under the Bill. The purpose of disclosing material that does not form part of the prosecution case is to enable the accused to prepare his defence. Sometimes that material is used for a wrong purpose—for example, to harass witnesses or to gain financial advantages for the accused or his associates. We want to deter those who may be tempted to misuse disclosed material and to reassure those who supply information to the police that it will not be used other than for the intended purpose.
Secondly, we are considering further how best to tackle the difficult issue of third party disclosure. Third parties, such as medical practices, banks or local authority social services departments, may have material that would be disclosable if held by the prosecution, so there must be some way of identifying and obtaining it. However, at present, the accused may request such material at a very late stage in the proceedings, without indicating its relevance to his defence. That places heavy burdens on third parties, who then must trawl through their records at the cost of considerable time and effort. More importantly, it results in delay and sometimes the abandonment of proceedings—often in cases where children are the victims.
We have been developing proposals for procedural changes that will benefit third parties without preventing the accused from seeing material that helps his defence. We have consulted the judiciary and others about them, and we aim to bring them forward at a later stage in the Bill's proceedings.
Finally, we intend to bring forward amendments to place beyond doubt the powers of the police in relation to searches of DNA databases. The amendments will ensure that the police can make full use of both DNA data and fingerprints.
The Bill is important and is intended to make our criminal justice system fairer, more efficient and more effective. It will make it easier for courts to reach the right decision. It will do much to improve public confidence in the criminal justice system. As such, it continues the work that I set in hand when I became Home Secretary, to strengthen the fight against crime. I commend the Bill to the House.
§ Mr. Jack Straw (Blackburn)
As the Home Secretary said, the Bill is important. As I said during the debate on the Loyal Address, we welcome the Bill's principle and purpose, although we shall of course ensure that it is subject to full scrutiny in the House, as it has been in the other place.
The Bill is about procedure. For some people, the process by which courts operate is a dry, technical subject of second order, but in practice the substantive rights that citizens should enjoy, such as the right to justice, depend on the machinery—the procedure—by which those rights can be exercised. The process is therefore of immense importance. It determines our court system's character and the criminal justice system's public reputation.
746 In the 1970s and 1980s, that public reputation was badly damaged by mounting evidence that the system was unbalanced in favour of the prosecution. Judges' rules which were supposed to provide clear guidance to the police about the treatment of suspects and the taking of evidence from them turned out to be ineffective and unenforceable. Corners were routinely cut by investigators. The culture was that, broadly, the end justified the means and that if it was known to investigators that a suspect had committed a series of crimes it was acceptable to adduce informal oral admissions of guilt and sometimes to encourage confessions by physical force.
The lack of effective supervision of the process inexorably led a minority of investigators down the path of corruption, of allowing the guilty to go free in return for favours and, even worse, of "fitting up" innocent people, either by the manufacture of prosecution evidence or by the suppression of evidence in the hands of the police that would be helpful to the defence.
Public disquiet about those abuses led among other things to the establishment of two royal commissions on the criminal justice system. The first of those, chaired by Sir Cyril Philips, reported in 1981. Its recommendations led to the Police and Criminal Evidence Act 1984 and to the establishment of police and criminal evidence codes. That royal commission said that there should be a change in the prosecution system to detach prosecutors from the direct control of the police. However, the Crown Prosecution Service was then established as a centralised national service, explicitly against that royal commission's recommendation.
Evidence of serious defects in the system continued to emerge. My hon. Friend the Member for Sunderland, South (Mr. Mullin)—having heard part of the Secretary of State's speech, he has had to leave the Chamber, but I hope that he will return to make a speech—played a leading part in shining a light on some of the most disreputable of those practices with his exposure of miscarriages of justice in the Guildford Four and Birmingham Six cases. My hon. Friend may be rightly feted for that now, but it is worth remembering that, for many years before the truth emerged, he was roundly abused by many people, including Ministers, for his efforts.
Following those notorious miscarriages of justice, the second royal commission was established under the chairmanship of Viscount Runciman. Its report prompted some changes—including a few of the well-known 27 points in the Secretary of State's speech to the Conservative party conference in 1993—such as new and welcome machinery for the investigation of miscarriages of justice. We appreciate that the Secretary of State did not have time during that speech to name the author of every point.
The courts, too, gradually responded to defence lawyers' demands for far greater access to so-called "unused material" held by the prosecution. After a series of Court of Appeal rulings—not all consistent with one another—in the Ward case, the Saunders case, the Davis, Johnson and Rowe case and others, the pendulum has swung from the position 20 years ago when the prosecution was under virtually no duty to disclose any unused material, to the position today, when it must disclose almost all unused material and courts can order 747 the disclosure of sensitive background information, including the sites from which surveillance has been undertaken and the identities of informants.
The first priority of any criminal justice process must be to ensure, so far as is humanly possible, that no person innocent of a crime is convicted of it. The effect of a miscarriage of justice on an individual is so great that that consideration must outweigh all others. It is for that reason, above all, that the fundamental requirement is on the prosecution to prove its case and not on the defence to disprove it.
Other priorities, however, are also of great importance. They include ensuring that the guilty are convicted and are not able to walk free from court by what amounts to an abuse or a defect of process; that victims and witnesses are accorded a proper role and dignity in the process; and that public confidence in the system is maintained and enhanced. It is widely accepted by hon. Members on both sides of the House and by people throughout the country that criminal procedure, especially in respect of disclosure of evidence, has become unbalanced in favour of the defendant.
There have been two results. First, an immense and disproportionate burden has been placed on the police and the prosecution to disclose anything unused but potentially of relevance to the defence. That has added to delays in the court system and has tied up huge amounts of police and Crown Prosecution Service time. Last year, Brian Johnson, former chief constable of Lancashire police, wrote to me setting out what had happened in just one case in which that force had been involved. He admitted that it was a complicated case, but said:For example, during a long running corruption enquiry in Lancashire, a police officer was employed full time supervising access to material by one solicitor for a continuous period of three months. Additionally in that case thousands upon thousands of documents were copied for the defence—the rental costs of copying equipment alone was not insignificant.Each document in the case had to be considered in respect of each of a number of defendants, firstly to determine whether it was material in relation to a particular defendant and then as to whether it should be scheduled as sensitive or non-sensitive. In the inquiry I quote above, given the number of defendants and the thousands of documents involved, it was estimated that over 5.5 million decisions had to be taken in respect of the disclosure of unused material.That is profoundly unsatisfactory.
The second result is that some well-founded prosecutions have had to be abandoned because otherwise critical information about informants or surveillance sites would have had to be disclosed, putting at risk not just registered informants, whose safety must be defended, but innocent members of the public who had co-operated with the police to help to secure the conviction of serious wrongdoers.
I give just one example. It relates to a case at Bristol Crown court in 1993. During 1992, police officers mounted an operation in Bristol to curtail a large amount of drug dealing in the city. So that the people dealing in drugs could readily be identified, the police mounted an elaborate operation which involved police officers posing as buyers making test purchases for crack cocaine. They were supported by police officers with a video camera in an unmarked van and by other officers in a static observation point from which the events were also recorded. The defendants were arrested after having sold crack to the undercover officers, but in court the charges 748 against nine of the defendants were withdrawn after the defence demanded to see surveillance film taken from a council flat.
The substance of the defence case—this makes the Secretary of State's point about fishing for artificial defences—was one of identification. The police had already made full disclosure of the video recordings taken from the unmarked police van which gave the evidence of identification—that was all the evidence that the prosecution was going to use—but defence counsel for the nine defendants sought full disclosure of the video recordings taken from the static observation point. That had only one purpose: to disrupt the case to the point at which there had to be an acquittal, which is what happened. As the disclosure of the video evidence from the static observation point would palpably have identified the camera's location and therefore put the innocent person who had allowed that camera to be put there at serious risk, a decision was taken to withdraw the remaining charges.
One could cite many other cases. Although the decision to require disclosure was made by a judge on application in some of them, in many others prosecuting counsel anticipated the judge's decision and instructed the police to disclose the names of informants or surveillance locations. When the police felt unable to do so, cases were withdrawn before reaching open court.
§ Mr. Donald Anderson
Even under the current system, the trial judge has to perform a balancing exercise as to whether the evidence is relevant to the defence. I do not know all the details of the case to which my hon. Friend referred, but it may be that a more robust judge would have taken a different view from the Lord Chief Justice in the case of the Crown v. Keane.
§ Mr. Straw
I entirely accept my hon. Friend's point. It is on record that, unfortunately, some judges are robust and some less than robust. My hon. Friend makes the point that because of confusion there has been much second-guessing by prosecuting counsels, with cases never reaching court in the first place.
The current Lord Chief Justice, Lord Taylor of Gosforth, has shown, rightly, that no one is more concerned than him to see that the rights of the accused are properly upheld. In his Tom Sargant memorial lecture two years ago, Lord Taylor set out the consequences of the current confused state of the law:However, the one-way traffic of disclosure by the prosecution, with no corresponding duty on the defence, has given rise to grave difficulties both for the Crown Prosecution Service and for the courts … The prosecution often have to anticipate what may conceivably be of assistance to the accused without any help from the defence so as to narrow the field. Indeed, there are often more and more searching requests by the defence for material on a purely speculative basis … The defence of duress, which used rarely to be raised, has suddenly become all the vogue and is used to seek disclosure about informants which, if given, would endanger them. Courts are being required to peruse large quantities of documents and judges, instead of being in court, are sitting in their rooms to decide what disclosure is to be made. This is an unacceptable state of affairs. It shows that the balance in this area has become distorted.Lord Taylor was entirely right.
The Home Secretary first presented his proposals on 16 May 1995, when he published a consultation paper, which I welcomed at the time. We are glad that he has since responded to the many suggestions made, which are 749 reflected in changes to the Bill that we hope will be incorporated in Committee. The Bill has been improved in the other place, but the procedure that the Government adopted there initially was not, in the context of bipartisan debate, of the best. Their Lordships encountered grave difficulty considering the draft code and whether it could be laid before Parliament subject to the affirmative resolution procedure. Following some adjournments in the other place, that provision has been accepted.
The Government were defeated in the other place on a proposal by Lord Ackner to strengthen the indemnity provided to protect justices and justices' clerks against orders for costs and other sums in respect of matters arising from criminal jurisdiction. I am glad that the Government have accepted that addition.
Some parts of the Bill could still be improved, and I invite a response from the Minister in winding up this debate and in Committee. When I responded to the Home Secretary's statement last May, I said that there should be sanctions against the prosecution as well as the defence when the rules in the Bill are not followed. That is important in ensuring equality of arms between defence and prosecution. There are stringent sanctions against the defence for failure to disclose and also against the defendant if he or she makes a late disclosure.
A tiny minority of abuses in the 1970s and 1980s soured the criminal justice system and led to imbalance. A breach of the rules by the prosecution ought to be underpinned by disciplinary action by the police and, in extremis, by criminal action. A palpably negligent and serious breach of the rules should lead to disciplinary action by the police or CPS. A deliberate or reckless breach should be subject to criminal proceedings.
While I accept that one of the Bill's main purposes is to reduce delays, there is concern that it might unwittingly increase them. Clause 1 provides for primary prosecution disclosure in the case of summary and either-way offences only when the accused pleads not guilty. The sensible intention is to prevent unnecessary work for the prosecution where the accused intends to plead guilty—I understand the mischief that is being addressed. However, there is a real danger that defendants will be advised to plead not guilty, as that is the only way that they will gain access to material. That would increase the delays that already bedevil criminal procedures and we must carefully consider how to overcome that difficulty—particularly as defence lawyers have become adept at ensuring that the cost slips that they submit to the Legal Aid Board are as extensive as possible. The existing rules are abused by some defence solicitors so that even in trivial cases, they refuse to proceed to a trial or disposal until all the material to which they are technically entitled is produced.
Paragraph 2.1 of the code of practice places a duty on the prosecutor to provide evidence to the defence that he believes would undermine the prosecution's case. I question whether that is too strong a test. Would it not be better to use the test employed by the Home Office in other contexts, of whether the evidence might cast significant doubt on the prosecution case? Paragraph 6.6 makes reference to sensitive material being that which is given in confidence. Much of the rest of the code is specific, but "in confidence" covers a multitude of categories and that definition should be reconsidered.
750 The Home Secretary referred to prohibitions in the Bill and to amendments that he will table against the misuse of evidence. In the other place, my noble Friend Lord Williams tabled amendments designed to prevent pornographic material contained in witness statements being circulated in prisons. It is an appalling but sad fact that when a small child is killed, sexually abused or raped, photographs and statements about the family come into existence. Defendants have access to that material for the necessary reasons of their defence, and they are able to circulate it in prison. The material can remain in circulation even after the defendant has left prison. My noble Friend proposed to stop such poisonous material being circulated in that way, and we regret that his amendments were resisted by the Government. I hope that the Secretary of State's amendments will deal with appalling misuse of the kind that I have described.
We agree with the principle that the defence should disclose the general nature of the case on which it relies. I do not believe that once a prima facie charge has been established against a defendant it is onerous for him to have to reveal the general nature of his defence, such as a claim that he was not present when the crime was committed or that he was present but that his conduct did not add up to the charges. We cannot accept a position in which defendants try to plead alternative defences—that they were either not there or their conduct did not amount to the crime charged—or in which, as we know happens, they wait until very late in the trial process and go fishing for defences.
I wish to deal next with the comments that the Home Secretary made about Sir Richard Scott's recommendations on public interest immunity in criminal cases. To answer the point that the hon. and learned Member for Burton (Sir I. Lawrence) made in an intervention on the Home Secretary's speech, as I read section K, chapter 6 of the Scott report, Sir Richard Scott anticipates that public interest immunity certificates could be used in criminal cases and, indeed, it is impossible that circumstances could arise in which they could not be used, given the nature of the material qualified by PH certificates. But Sir Richard recommended categorically that PII claims on a class basis should not be made in future. He said that PII contents claims should not he made for documents which might be of apparent assistance to the defence. He also made some detailed recommendations about the use of PII certificates.
We all listened with care to the Home Secretary's comments, and I am sure that both sides of the House agree that the Scott report is complicated. Sir Richard Scott raised some issues of principle on which the Government could and should make more prompt decisions than they will on others. For example, it would be possible to make early decisions on class claims. Sir Richard explains in detail the reasons behind his view and why, in his judgment, the avoidance of class claims would not in practice prejudice sensitive intelligence material that obviously should not be seen in open court.
We welcome the proposals in clauses 23 to 34 on preparatory hearings. I wish to make a point about the scope of clause 29, which provides for the right of appeal—with the approval of the trial judge or the Court of Appeal—against a ruling at a preparatory hearing on the admissibility of evidence or other questions of law. We agree that that would be a satisfactory way to deal with such issues before trial, but—I genuinely seek 751 information on this point—it seems that no appeal would be allowed against the striking out of counts in the indictment or, once there has been a preparatory hearing and the prosecution case has been heard, against the dismissal of a case altogether before the defence has put forward its case.
That is possibly the most important power belonging to the trial judge. In most such cases, judges act entirely correctly and there is no dispute about the decisions, but not all judges are robust—the adjective used by my hon. Friend the Member for Swansea, East (Mr. Anderson). Sometimes, the decisions to strike out counts in the indictment or to dismiss a case before it goes to a jury are incomprehensible. If it is right, as we believe, for a right of appeal to be available on decisions on evidential matters or other issues of law in preparatory hearings, it would also be right to allow appeals in such situations. The appeals could be allowed only in controlled circumstances or with the approval of the Attorney-General to prevent a sudden rash of appeals.
The Home Secretary referred to part V of the Bill about transfers from magistrates courts and we will examine those in detail. Clause 43 would change the current law that applies to those aged under 17 who are remanded in custody, and it would allow remands, in certain circumstances, to be extended from eight days to 28 days without a further court appearance. Although we believe that that power should not be used too often, the change in the law would be appropriate given the extreme shortage of secure local authority accommodation. In many cases these days a juvenile may be remanded to secure accommodation hundreds of miles away from the court in which he is to appear.
I visited Mansfield recently, at the invitation of my hon. Friend the Member for Mansfield (Mr. Meale), to talk to the police and social services directors about the total inadequacy of the youth justice system. There, as elsewhere, they have had great difficulty dealing with five persistent offenders who had been arrested 442 times between them before being remanded in custody. One of the many complaints that the people I spoke to made about the current system was that the only secure bed that could be found for the most severely persistent offender from Mansfield was in Southampton. The police officer in the case, who was the only person who could take physical custody of the young offender, had routinely to get up at 3 o'clock in the morning to go to Southampton to bring him to the remand court in Mansfield, for him to be remanded back to Southampton.
I am glad to see the hon. Member for Lancaster (Dame E. Kellett-Bowman) in her place. I was told about a similar offender recently by the Blackburn police. In that case, the nearest secure accommodation that could be found was in Bristol, which led to immense problems for the police.
§ Dame Elaine Kellett-Bowman
The hon. Gentleman has raised a point about Lancaster prison. Does he recall 752 that we have had some notable trials there because, since the defendants are on the spot, there is no need to escort them to and from the gaol? That is a good reason to keep the court in Lancaster open.
§ Mr. Straw
I share the hon. Lady's view that Lancaster Crown court should be kept open. The blood transfusion service should also have been kept open, but that is not our responsibility—it is the Government's.
We welcome the proposals made in clauses 45 to 48 on jury and witness nobbling. I did not quite follow the point made by the hon. and learned Member for Montgomery (Mr. Carlile) about what would happen if the witness was nobbled to the point of death. He appeared to imply that there would be an incentive to murder if the death of a witness could lead to a case being wholly aborted. That would seem to encourage not just the nobbling of witnesses, but their murder.
§ Mr. Alex Carlile
The problem was entirely my fault and I shall try to help the hon. Gentleman. Clause 45 would provide that before a retrial following a tainted acquittal, there would have to be two preconditions—first, an acquittal and, secondly, a conviction of a nobbler. I was trying to make a point—I confess that I did not do it well—about what would happen if the nobbler was dead. In that instance, there could be no conviction of the nobbler and, therefore, no retrial. I do not see why there should not be a retrial in such circumstances, provided that the requisite evidence comes up to the criminal standard. I hope that I have made that clear now.
§ Mr. Straw
I now understand the hon. and learned Gentleman's point. There is a big difference between the death of a witness and the death of the person who has nobbled a witness. I accept that the hon. and learned Gentleman's point is important and I am sure that it will be raised in Committee. With great respect, I must say that the point is entirely the opposite of the one he made in his intervention.
Clauses 49 to 52 would make some important changes to the law on derogatory assertions made in mitigation, and we welcome that. I have read the clauses, as the Home Secretary might expect. So far as I can judge, no one person in the court system will have a duty to raise with the bench the question of whether derogatory assertions have been made. Although the power is available to rule out derogatory assertions, there is no specific trigger. I assume that that is left to the judge in the Crown court—who would be alert to the situation—to the clerk in the magistrates court or to the members of the bench. I am sure that a stipendiary magistrate would be alive to the problem, but a non-stipendiary magistrate who has to deal with many cases may be less alive to the possibility that derogatory assertions have been made.
I want to ask two questions. First, should the prosecutor, once mitigation has been made, have a right to make submissions to the court to the effect that these powers ought to be brought into play? My second question is a wider one, but it is important. Should prosecutors have wider duties at mitigation? Curiously, the English courts have the strictest rules of evidence for defence and prosecution when it comes to the trial of an issue. These rules of evidence stretch right back to the moment when a person is identified as a suspect by the police. Elaborate rules govern the cross-examination of 753 suspects in police stations—far more onerous rules than those governing the cross-examination of innocent people acting as witnesses for the prosecution in open court.
There are, however, effectively no rules when it comes to mitigation. Uncorroborated evidence about character, background, family circumstances and so on is advanced by defence lawyers as factual. At the moment, it is also unchallengeable.
I have recently been to the courts to refresh my memory of the days when I used to make small but honest living as a junior member of the Bar. It is astonishing to see the nature of mitigation. Sometimes, of course, high-quality people have produced good evidence that is not subject to criticism. But often, especially in magistrates courts, the same standards do not apply. Usually, we find, someone has died or a girlfriend has become pregnant or someone has just found a job—and so it goes on. It may well be true, of course, but these pleas in mitigation seem to spew out of the word processors of defence lawyers and no one challenges them.
That undermines confidence in the courts. It also means that all too often the defendant's previous convictions are skimmed over by the defence. Those previous convictions appear in brief on computer sheets: the bare details of a theft and the punishment for it, for instance. The defence will often try to minimise the nature of the previous convictions. My brief experience of sitting in courts recently showed me that, all too often, an unexpired conditional discharge has been issued but the magistrates courts do not properly take that fact into account or act upon it.
If the prosecutor could point out that someone had been up before, and could show the court files from which it becomes clear that a different bench has said that this was the person's last chance—if he commits the offence again, he will be subject to a custodial sentence—perhaps the problem would be alleviated. Certainly, the information should be given to the court; otherwise there will be no sense of serious progression in the sentencing system.
§ Mr. Alex Carlile
Is the hon. Gentleman aware that until recently it was the practice in all Crown courts for there to be an antecedents officer, whose job it was to present the previous convictions of convicted persons to the judge, and to make inquiries, as requested by the judge or by the parties, as to the truth or otherwise of assertions that have been made—for example, about the facts of those convictions? Is he further aware that as a result of economies stemming from Government policies there are now virtually no antecedents officers in Crown courts? Would it be Labour party policy to restore those useful officers to the courts?
§ Mr. Straw
I was aware of that, and the situation is serious. It is ironic that in these days of computers and centralised records the information available to courts—especially magistrates courts, but also Crown courts—is less extensive than it was, say, 20 years ago. The answer to the hon. and learned Gentleman's second question is that I hope so.
We have welcomed the Bill. Although it may be the last of the Home Secretary's 27 points to be implemented, it should by no means be the last of any series of reforms 754 of the criminal justice system. I do not want to be controversial in the context of this debate, but everyone must recognise the seriousness of the problem that too few offenders end up in court. Crime has doubled in the past 17 years, while the number of those convicted or cautioned for offences has fallen by 6 per cent., and the number of convictions has slumped. Convictions as a proportion of serious crimes fell alarmingly between 1980 and 1994: for rape, from 37 per cent. to 9 per cent., and for domestic burglary, from 9 per cent. to 3 per cent. On the issue of rape, I greatly hope that it will be possible to make amendments in Committee to ensure that those who are guilty of charges of rape are more likely to be convicted of them.
Two changes need to be made in this context. First, the Sexual Offences (Amendment) Act 1976 needs amending to eliminate questions about a victim's sexual history—for instance, about past abortions and early sexual relationships which are not relevant to the immediate case. That was recommended by the Heilbron committee. Secondly, it seems to us that there should be proper application of so-called similar-fact evidence, so that where the defendant is accused of more than one sexual assault on different women in similar circumstances, the cases can be heard together. There have been notorious examples of such cases being detached from one another. The result is that an accumulation of probative evidence cannot be built up.
Thirdly, the time is long overdue for reform of the Crown Prosecution Service. I referred in my opening remarks to the recommendations of the Philips royal commission, which reported to this House in January 1981 under Cm 8092. The royal commission said that there had to be changes to the CPS, adding that the last way in which it should be changed was the establishment of a single, national service. The commission went through the arguments carefully, and disputed the case for a single service at paragraphs 7.22 and 7.23:Against this must be set the disadvantages that are likely to accrue from the bureaucratic nature of a large national organisation working in this area … We believe it to be hazardous to argue from the experience of other jurisdictions that a national prosecution service would be workable in England and Wales. We know of no common law jurisdiction in which the equivalent of a national prosecution system of the type we are discussing either covers an area with anything approaching the population of England and Wales … or deals with a crime load of anything like the same order of magnitude.Those were wise words—unfortunately not heeded by either party when the prosecution of offences legislation came before the House in 1986. In the light of experience, however, they certainly need to be heeded.
Although the courts have fewer cases to deal with these days, they are taking longer to deal with them. The proportion of remand prisoners dealt with by the Crown courts within the statutory time limit dropped from 84 per cent. in 1989 to 74 per cent. in 1994. There was a most revealing passage about delays in the report of the debate held in another place on 5 February, when the Minister explained that under the existing committal system, the 42-day pre-trial issues guideline for service of the prosecution's case appears to be met in only very few cases. The Minister said that, although no comprehensive figures were available, sampling suggested that as many as 75 per cent. of cases exceeded that period.
Instead of cracking down on the delays, Ministers answered that by proposing to substitute for the 42-day pre-trial guideline a 70-day period to reflect changed 755 circumstances. That is plainly unsatisfactory. Nor is it satisfactory that the costs of legal aid for criminal cases have rocketed—in a way that is not linked, as some defence lawyers claim, to changes in criminal procedures. The cost of criminal legal aid per defendant has risen in real terms by 127 per cent. since 1979–80. That is wholly unacceptable.
There is also a profound need for a full investigation of the youth justice system, which is hardly working at all.
The Opposition welcome and support the Bill and we shall work constructively to improve it. We all want a criminal justice system that protects the innocent while ensuring conviction of the guilty. The Bill is one step along the path of reform of the Crown Prosecution Service, which is so long overdue.
§ Mr. Walter Sweeney (Vale of Glamorgan)
I welcome the Bill's central provisions on disclosure. It is clearly desirable that the police should not have to photocopy huge piles of paper unnecessarily. It is important that prosecution cases should not have to be dropped because of the need to avoid disclosing sensitive information, such as the names of informants.
I have in mind a case involving a major banknote forgery where suspects were arrested in a hotel bedroom following a tip-off. There was a large pile of forged banknotes in the room, some of which bore the fingerprints of some of the suspects. The case had to be dropped because the judge ordered that the identity of the person who tipped off the police would have to be disclosed.
The three-stage disclosure procedure proposed in the Bill is welcome: the obligation on the prosecution to disclose any unused material that might undermine its case; the obligation on the defence to outline its case in sufficient detail to identify the issues in dispute; and the obligation on the prosecution to disclose any further information that might assist the defence. That logical sequence should help to improve court procedures.
I am pleased that a code of practice has been prepared to assist the police and the prosecution in producing all appropriate documents. I wish, however, to sound a note of concern, which I hope will be taken up when my right hon. Friend the Minister of State replies. I am concerned about how the exercise of discretion by the police and the prosecution will be scrutinised so that the system can be seen to be effective in protecting the legitimate interests of defendants.
An idea for a defence might occur to a defendant when he and his legal advisers have an opportunity to engage in what Mr. Broughton of the Police Federation described as a fishing expedition. I am talking of an idea or ideas that may not have occurred to the defendant because he was not aware of a loophole in the prosecution's case. The police and the prosecution, from their different standpoints when compared with the approach of the suspect, may not be as acutely aware of potential defences as would be the defendant or his advisers. If the Bill is enacted, it will help to stop guilty people being acquitted. It is even more important that it should help to stop innocent people being convicted.
I hope that my right hon. Friend the Minister of State will be able to provide reassurance that there will be adequate scrutiny of the police and the prosecution, to 756 ensure that, in cases of doubt, the police and the Crown Prosecution Service err in favour of too much disclosure rather than too little.
I welcome preparatory schemes for long or complex cases as they will ensure that cases are well prepared and presented when they reach court. In complex fraud cases, that will be especially useful in helping jurors to understand complex issues.
The opportunity to argue legal points at preliminary hearings will help to avoid confusion among jurors, who feel rather baffled when they are sent out of court while legal points are argued. If issues are argued before the trial begins, jurors will be able to hear the evidence in a more seamless fashion. They will no longer be baffled by unexplained requests to leave court.
The Bill will encourage defendants to enter pleas at an early stage, which will considerably improve the court process to the advantage of all concerned. If a defendant enters a guilty plea, that will avoid the need to prepare the volume of paperwork that would be necessary if the case were going to trial. At the same time the defendant will benefit from increased certainty and increased speed in the disposal of his case. He will be able to take advantage at an early stage of any discount for his plea. The courts will be able to reflect the fact that the defendant, through his action, has saved the court, the CPS and the police quite a lot of preparatory work.
I welcome the fact that the Bill provides powers for the courts to ban reporting of false or irrelevant allegations against witnesses during pleas of mitigation. It has always worried me that once a person has been convicted, or following a guilty plea, the last word is with the defence advocate, once the court has had the opportunity to consider all the available reports, for example. The bench and reporters finish a case with the words of the defence advocate ringing in their ears, and those words may be reported in the press to the detriment of witnesses. That damages the witnesses concerned and acts as a deterrent to other public-spirited citizens in coming forward to give evidence in future.
I congratulate my right hon. and learned Friend the Home Secretary on reaching the end of his 27 points. He has delivered quickly on all his commitments in reform of the criminal law, despite the considerable difficulties created by the Opposition.
The hon. Member for Blackburn (Mr. Straw) has received the Bill in a constructive manner; I hope that his constructive approach will continue in Committee. His concern about court delays is, I am sure, fully shared by Conservative Members. I believe that the Bill will help to reduce those delays and will lead to speedier and more effective justice.
§ Mr. Donald Anderson (Swansea, East)
I applaud the reasoned and reasoning contribution of the hon. Member for Vale of Glamorgan (Mr. Sweeney), which was much in the spirit of the contribution made by my hon. Friend the Member for Blackburn (Mr. Straw). As my hon. Friend said, we welcome the Bill and support its main provisions. We shall try to work constructively during its remaining stages.
At first glance, this is a lawyer's Bill; it is somewhat technical and long. It seeks to remedy deficiencies that have been revealed in practice. In relates, however, to 757 deep issues of principle, such as the respective roles of defence and prosecution in criminal trials. I have in mind the golden thread of Viscount Sankey—the presumption of innocence and the burden that should properly be put on the defence. Those are areas that need properly to be explored in Committee.
The Bill has been introduced at a time when there is deep public anxiety about the criminal justice system. We should heed that anxiety with respect. By their response to consultation documents, the Government have at least given some sign of being prepared to listen.
I make but two preliminary points, the first of which is, perhaps, marginally controversial: that the Home Secretary, by his conduct over the years in criminal justice matters, can hardly be surprised that many reasonable people involved in criminal justice respond with caution and wariness to any proposals that he makes. In the past, many of his proposals have been made in the rather heady atmosphere of Conservative party conferences, which is not most conducive to a reasoned debate about criminal justice. There is always the fear that if one expresses anxiety—as, to be fair, the hon. Member for Vale of Glamorgan did—about ensuring that innocent people are not found guilty and that proper facilities are available to the defence, the Home Secretary will gleefully leap out and accuse us of being the "villain's friend". Let us hope that we can proceed in a rather different spirit today.
On a similar theme, each hon. Member has received a valuable briefing for the debate from a number of outside organisations, including the Law Society, the Bar Council, Justice and Liberty. Some of us have practised—and some still do—criminal law. In my judgment, it is always helpful to have a question and answer response from those who are learned in the field, particularly with a non-controversial Bill of this nature, because so often the atmosphere in Standing Committees is adversarial—we glower at each other across the Benches, which is not the best forum for such a study.
I wonder why the Government have not considered referring the Bill to a Special Standing Committee, which would allow us to examine it in a somewhat more rational atmosphere. I shall not go over the history of Special Standing Committees, but the House will know that they came into being in the early 1980s. I think that only seven Bills have been subjected to that special procedure. Indeed, since 1983–84, only two Bills have been subjected to it, and both were on Scottish business. When the Opposition made that suggestion in respect of the Asylum and Immigration Bill, the Home Secretary stated that it could not properly be referred to such a Committee because it was controversial, He said:A Special Standing Committee is a procedure suitable for non-controversial technical Bills".—[Official Report, 20 November 1995; Vol. 267, c. 340.]On another occasion, he said:It has always been clear that the procedure was designed for Bills that have a degree of cross-party support. The Bills for which it has been used have been relatively technical and non-controversial."—[Official Report, 11 December 1995; Vol. 268, c. 710.]Does not this Bill fall four square into that category? If that procedure, which has been lauded by the Government in the past, and which, as with the Criminal 758 Attempts Bill, has proved extremely useful to the Government, is to be used at all, is not this Bill a perfect opportunity according to the Government's definition? It cannot take up a great deal of time, because under the relevant Standing Order 28 days are allowed, and it would allow us to call experts.
The Home Secretary mentioned the consultation procedure in respect of PII certificates and the way in which Sir Richard Scott's recommendations would be examined. Would it not be appropriate, as PIIs arise under the Bill, for Sir Richard and other relevant practitioners—academic and otherwise—to be called before such a Committee? Are the Government saying that it is not appropriate for such a vehicle to be used? Surely the Bill is highly appropriate for such a procedure. The Government are not so fizzing with legislation that they have no time to deal with it because the juggernaut must press on. We all know that a substantial part of their legislative programme has already been put into effect. They have said that the consultation document on PIIs will be published in, perhaps, May. It is technically possible for the conclusions of that consultation to be incorporated in the Bill. I make that plea to the Government on the preliminary points.
On the substantive matter of disclosure, and more generally, I am attracted by many of the proposals in the Bill, particularly those designed to speed up the process of trial and to clarify and narrow the issues in dispute beforehand. I accept that the defence should be required to show the relevance of unused material that it seeks to inspect, and not to go on a fishing expedition in the hope that a defence will emerge.
Equally—this point was made by the hon. Member for Vale of Glamorgan—it is wrong that juries should be inconvenienced by having their consideration of trials interrupted, often for substantial periods and frequently while points of law are argued in their absence. It is surely right that, as far as is practicable, all such issues should be disposed of before a jury is sworn, as suggested in, I think, clause 34.
If greater use is to be made of pre-trial procedures, I make the plea that the judge who decides the preliminary issues should also be the judge at trial. All too frequently, particularly in London, a succession of judges deal with such preliminary points and it is highly desirable that the judge who determines such preliminary points should also be the trial judge.
On disclosure, my hon. Friend the Member for Blackburn quite rightly said that the problem of the burden of material must be considered. It is a question of drawing the line. It includes the equality of arms, which has been developed by the European Court of Human Rights in interpreting article 6(1) of the European convention. There is broad consensus that the balance between defence and prosecution obligations is not right, and the Bill goes a substantial way towards remedying that.
There will be a need to examine in detail each stage of the proposed new procedure, which in many ways appears to be cumbersome but which may be the best that we can devise. We should proceed with some humility, realising that the great miscarriages of justice that have tarnished our system over the past decade, and in which my hon. Friend the Member for Sunderland, South (Mr. Mullin) has played such a distinguished part, arose essentially because of non-disclosure.
759 There will be selective disclosure, and therefore part of the task of the Committee will be to ensure that there are sufficient safeguards. For example, the investigator should be under the clear control and supervision of the prosecutor. Any prosecutor—I spent most of my professional life prosecuting—will understand that, for the majority of the police, there is a crusading element: an element of diffamation professionelle, professional defamation. The prosecutor should be able to make a more objective assessment.
I am broadly happy with the provisions in respect of defence disclosure, which are intended to clarify the issues and to save time. Again, however, certain safeguards need to be written into the Bill. I am prepared to accept the argument for a statement of the prosecution's case, and for a duty of continuous disclosure as new facts come to light. I shall not go into all the details now, but I will say that I welcome the possibility of a retrial in the event of an acquittal following jury nobbling, although I fear that the provision will not have much effect in practice. It is worth reading clause 46 in detail: it draws attention to many of the hurdles on the route to a retrial. I suspect that few, if any, will take place, but I nevertheless think it proper for such powers to exist. It offends our sense of justice that criminals can scoff at the law.
I also welcome the power to restrict the reporting of defamatory allegations in mitigation; in any event, the onus is on defence counsel not to parrot the more lurid suggestions made to him by his client, without investigation. I envisage numerous difficulties, however—not just practical difficulties related to the lack of antecedents officers, which were mentioned by the hon. and learned Member for Montgomery (Mr. Carlile), but difficulties related to the question of who will challenge. In many instances, no one in court will be able to refer the existence of defamatory allegations to the judge, and the family involved may learn of them only after the event. We should consider whether it should be the duty of the clerk at a magistrates court, or of the judge or prosecutor in the Crown court, to stop the proceedings until the family of the victim, for instance, has had a chance to make representations. None the less, I approve of the arrangements in principle.
Let me return to an earlier point. We should be humble enough to realise that we can learn from experts in a non-controversial sphere such as this. Although many of us have experience, it may not be up to date, and it is always possible for us to learn. If the procedure is to be used at all—if the Government do not rule it out—the Bill qualifies for the establishment of a Special Standing Committee.
§ Sir Ivan Lawrence (Burton)
I shall not labour my connections with criminal proceedings, of which I think the House is aware.
I welcome the official Opposition's support for the trend of improvement set out in the Bill. I have never heard them so supportive. Perhaps our attacks on them are going home; perhaps we should attack them less, in case we are embarrassed by their support for future measures. I caution Ministers: perhaps we should temper our criticisms of the ridiculous "tough on crime, tough on the 760 causes of crime" slogan, lest we find ourselves in that uncomfortable position of being supported by the Opposition.
§ Mr. Straw
I think it fair to say that, when the Deputy Prime Minister used the words "the villain's friend", the person he had most in mind was the hon. and learned Gentleman, who defended the Krays. Let me add—although I did not wish to make this point, given our consensual approach to the Bill—that it just happens that I made speeches about the need for changes in the disclosure rules rather in advance of the Home Secretary's statement to the House in May. I spoke in early April.
§ Sir Ivan Lawrence
I accept what the hon. Gentleman has said, but I remind him that the Krays were convicted and went to prison for a very long time. I think that acquitting them would have been an impossible job.
When I went down, with my learned leader, to say goodbye to Ronald Kray, he said, "Thank you very much, Mr. Lawrence, for what you have done for us"—30 years. He added, "We are going to keep our fingers crossed for you in Peckham"—where I was then Conservative candidate—"so that you can become Home Secretary and let us out early." I do not think I need remind the hon. Member for Blackburn (Mr. Straw) that I have never become Home Secretary. There is justice and sense in the system that the Conservative Government have been operating for the past 15 years.
There are two kinds of miscarriage of justice: the conviction of the innocent and the acquittal of the guilty. The Government's criminal appeals legislation has made statutory changes to reduce the incidence of the former, and a number of measures have sought to redress the latter. They comprise many of the famous 27 points mentioned by my right hon. and learned Friend the Home Secretary at the wonderful Conservative conference in October 1993. Some have required legislation; others have not.
Closed circuit television, which is being introduced all over the country, is substantially reducing the incidence of violent crime and crime as a whole—by some 60, 70 or 80 per cent. in some areas. DNA testing is also helping, as is the amendment of the right to silence. In due course, that may help to convict more guilty people.
The introduction of tape-recorded interviews has not only secured the conviction of many of the guilty, but speeded up criminal trials. Witness intimidation has been made an offence, and more police officers have been provided, better trained, equipped and led. They have now been supplemented by the security services. The police have also been given tougher stop-and-search powers. The Bill includes a number of further improvements in the effectiveness of criminal trials, which will help to reduce the number of acquittals of the guilty.
I shall not repeat the changes or their justification, because that would not add much to constructive consideration of the Bill, and we have not much time. Let me make two specific points. First, I am among the staunchest supporters of my right hon. and learned Friend the Home Secretary and my right hon. Friend the Minister of State, who have made determined efforts to turn the criminal justice system more effectively against criminals and in favour of victims and potential victims. I backed most—but not all—of the measures that we have introduced, and I back this Bill.
761 Let me add, however, that, as long as we retain an adversarial system—which I consider the best way of ensuring that the innocent are not convicted—we shall have to be aware, and constantly remind ourselves, that the prosecution has advantages that the defence has not. It has resource advantages, procedural advantages, time advantages and psychological advantages. The protections for the defence are very important and must never be swept away.
By all means we must amend and improve the protections. We must try to tilt the unnecessary benefits that the defence receives in favour of conviction of the guilty, but we must never let down our guard in protecting the basic rights that we have traditionally accorded to the defence in criminal trials, which are enshrined in the concept of the burden of proof.
We have done so much to reduce the unfairness and injustice against the prosecution that we may soon come to the time when we go over the edge and tilt the benefits too much in favour of the prosecution. We must certainly begin to think about checking our enthusiasms for going further down that line.
I do not think that every provision we have made is very sensible. For example, I do not think that sweeping away committal proceedings in order to be kinder to victims has helped to make our justice system more effective. It just means that bad cases get stopped at a later and more expensive stage in the proceedings.
I am not sure that having a state-funded duty solicitor at every stage after a person has been arrested improves justice very much. It just imposes a much greater cost on justice, because many accused people who would have found a solicitor privately for at least the early stages of the proceedings now find that their representation is paid, quite expensively, by the state, to the substantial disadvantage of taxpayers. I think that we have been somewhat over-enthusiastic about introducing that type of change—which I doubt has been efficient and effective.
We must be careful with this Bill not to make the rules we lay down over-rigid. I very much welcome the response that my right hon. and learned Friend the Home Secretary has made to the early indications that there would be a requirement that the names and addresses of all witnesses, not only in alibi cases, should be revealed to the prosecution. I welcome that change, because of the realistic fear—of which all of us who have practised in the criminal courts are aware—that the police might be able to get at witnesses and, sometimes deliberately and sometimes not deliberately, deter them from giving important evidence for the defence.
It is very easy, for example, for the police to approach potential witnesses who have previous convictions and remind them that, if they give evidence, those matters will be disclosed for all to see. That is a reason why, in the end, the defence has not been able to call the witnesses whom it might otherwise have called. The Home Secretary's response to that has been both generous and sensible, and I very much welcome it.
So, the judge must be given flexibility to consider, if he is asked, whether the circumstances of the case require the waiving of the strict rules which may, or may not, emerge from this Bill. Ultimately, the judge must be given 762 that type of flexibility, to protect the defence. We all have examples of how we have made pleas to the judge to make changes. Sometimes he has said, "Yes, I have the discretion to do that." Sometimes he has said, "No, I have no discretion," and the trial has continued, perhaps unfairly with regard to the matters that had been challenged.
Secondly, my right hon. and learned Friend should be aware that this Bill may have serious resource implications. There is, for example, no point in the defence revealing the details of its case if the police are not available to check up and follow through the information that they have been given. From the defence point of view, it is important—it may also be important for the prosecution—that, between the committal and the trial, the police should consider whether there is an answer to the allegation in the defence case, or whether the defence case is one which is susceptible to challenge, and the trial can be more speedily brought to an end.
It is sensible to have matters sorted out in pre-trial reviews—especially in requiring rulings on points of law, which is long overdue—but there are practical problems. The procedure will require the barrister who is to conduct the trial to be present at the pre-trial review. The trend is to require that to happen, but it may not happen. It cannot always happen at present. What would happen if the barrister who is to conduct the trial is part-heard in another case? One cannot be expected to reschedule the pre-trial hearing. Very often, the current pre-trial hearings are not very efficient and effective, for the simple reason that the barrister who will conduct the trial is not there.
What would happen if, at a later stage, a Queen's counsel is appointed who has a different view about the way in which the trial should be conducted from that of the junior who appeared at the pre-trial proceedings? If one is to get the barrister who will conduct the trial there, one will have to get him to set aside all other business—his work and his income. If banisters have to give up other work to be at the pre-trial review, it might require a substantial increase in the money that is paid in legal aid. The alternative would be conflict between the Bar and the bench when banisters do not appear.
We are here requiring, are we not, a paid activity by banisters, which will further extend the time before banisters are paid? The Bar is currently—it has been at all times that I can recollect, but it is worse now than at any other time—seething with anger and irritation at the delays before the payment of fees. Members of the Bar have to live, just like everyone else. They sometimes have poor cash flows, and they may have to wait up to a year to be paid for their cases.
The Drug Trafficking Offences Act 1986 has extended the waiting time. One cannot put in a fee claim—
§ Sir Ivan Lawrence
Yes; but it is one which raises resource implications.
One cannot put in a fee claim until all the proceedings are over and the person is sentenced. That matter was not taken fully into account when the Drug Trafficking Offences Act was introduced. We will therefore have to consider carefully the resource implications of changes. If one does not take a trade union point of view, there will not be many banisters left in the profession. That may be 763 the direction in which everyone wants to go—I do not know—but I am not sure that the system will be improved if we do away with the dual system of solicitors and barristers.
I hope that the points I have made about the Bill will be borne in mind during its passage through the House. I also hope that we may get some indications of good will from the Government about the manner in which those matters will be handled. I have explained my hesitations. I very much commend the requirement for pleas to be encouraged at pre-trial hearings, because that will speed justice in criminal cases. Provided that there is flexibility and understanding about why, in some cases, pleas are not ready for delivery, I have no doubt that it will be an improvement.
I commend the further weapon against jury nobbling, so that, where it is discovered, the guilty will not necessarily go free. That should further discourage people who may be tempted to pay dishonest people. There was a recent case of a dishonest ex-police officer who asked the family of an accused person for £25,000 in return for naming the jurors. The proposal for juvenile remands, provided there is flexibility, is very sensible, and will spare the trauma of repeat appearances in court for children. I also commend the proposal to give the judge the power to restrict reporting of false or irrelevant allegations made in mitigation proceedings.
The Bill improves the law. Not only will it honour the undertaking given by my right hon. and learned Friend the Home Secretary in all his 27 points, but it will make justice more efficient—as long as we keep in mind the problems that might be posed by the legislation and do not rush helter-skelter to deprive the defence of any citizen's fundamental rights.
§ Mr. Alex Carlile (Montgomery)
I am afraid that I am the fifth barrister of five speakers so far in the debate. I have practised at the Bar for the past 25 years—not exclusively but considerably, in criminal cases. After the speech of the hon. and learned Member for Burton (Sir I. Lawrence) I am tempted to give him 10 per cent. of my next fee in return for his eloquent, shop-steward-like efforts on behalf of the Bar, but he can do without the money, and I shall not weary the House by backing his undoubtedly correct complaint that payments, especially to young junior barristers, are too long delayed for legal aid defence work. In that context, the Government are among the worst late payers of debt.
We all have bad days. I have had a bad afternoon, because earlier I made two attempts to make a good point, and on each occasion made it badly. It is bad enough making a bad point badly, but making a good point badly is nigh unforgivable. So I should like to return to my point, which relates to part VI of the Bill.
I share the Home Secretary's view that jury and witness nobbling is extremely serious. I thought that, given his great 27-point conference speech, he was going to act toughly on it. In fact, part VI creates a procedural steeplechase for the prosecution before a case arising out of jury or witness nobbling can take place. As the Lord Chief Justice said in the other place on Second Reading, it is very important to ensure that the double jeopardy rule remains effective. It is extremely important to ensure that, wherever appropriate, people do not suffer the risk of double jeopardy on criminal charges.
764 However, as I meant to convey in my interventions, there may be cases in which clause 45(1)(b) cannot be satisfied because the nobbler of juror or witness will be dead as a result of the sort of gangland warfare that occurs in such cases, or will conveniently absent himself from the jurisdiction. I hope that, in his winding-up speech, the Minister will say that the Government are prepared to consider those circumstances, and examine whether tainted acquittals might not be addressed in that context. It is not a fanciful state of affairs at all.
I am a little concerned about the language used in debates on disclosure. It seems to be a fashion to have at one time more disclosure, and then for the pendulum to swing towards less disclosure. I suspect that, if we are witnessing such a swing of the pendulum, we may, as a result of efforts of people such as the redoubtable hon. Member for Sunderland, South (Mr. Mullin), see the pendulum swinging back the other way in a few years' time, towards more disclosure.
I hope that the Bill, which makes a sensible and creditable attempt to address the issue of disclosure, is not simply regarded as part of that swing of the pendulum. Rather, it would be gratifying if the House for a change produced a piece of legislation that stood the test of time and provided a continuum of rules on which sensible disclosure jurisdiction could be exercised by the courts.
I support the Bill in principle, but not the Home Secretary's rhetoric. I do not believe the Home Secretary's rhetoric that the Bill will have a significant effect on the catching of more criminals—it may or it may not. If we get the Bill right by the time it has completed all its stages, it is likely to strengthen the fairness of the trial process to both sides—the defence and the prosecution.
I am troubled when I hear adjectives such as "robust" used about judges. So far in this debate, the only references to robust judges have been premised by the assumption that robust judges make rulings in favour of the prosecution. It is my view, and certainly the experience of practitioners, that robust judges are sometimes needed to make rulings in favour of the defence, too.
Indeed, the subject, especially someone who is innocent and charged with a criminal offence—believe it or not, that happens from time to time—may be given protection by robust judges on whom he can rely for good judgment where necessary in favour of the defence. So let us not knot ourselves up in political rhetoric about important issues. We should approach the Bill on the basis that it is worth having only if it improves the investigation and the trial of criminal offences.
On improving the trial of criminal offences, I have one great disappointment about the Bill that relates to victims. I am surprised that the Government, who have had much to say about victims—much of which I support in principle—have not seen fit to include in the Bill, particularly in the part dealing with pleas in mitigation, a provision for victim statements to be made available to the court in all serious cases.
Last week, I chaired a multi-disciplinary victim support seminar in Llandrindod Wells in mid-Wales, in which it was the view of all involved—the seminar included very senior representatives of the police and the Crown Prosecution Service—that a victim's statement before each court considering a serious offence would assist the 765 judge in passing a just sentence. One of the points made was that a victim's statement would help the judge to assess whether the plea in mitigation put forward by the defence counsel or the defence solicitor was based on honest instructions.
We have a well-established procedure, although it is not used as much as it might be, for what are called Newton hearings. In a Newton hearing, which arises when there is a guilty plea, the judge can hold a hearing to assess the factual truth of assertions made, and in particular the basis of the guilty plea. The introduction of victim statements would enable judges to be much better informed when deciding whether a Newton hearing was necessary. So it is a disappointment that that is not included.
However, other aspects of the Bill are welcome. In dealing with issues of disclosure, I feel bound to take us back to the most fundamental question of all about criminal trials: what is a criminal trial? What is it trying to achieve? There is a common misconception that a criminal trial is some form of public inquiry—a Scott-type inquiry, perhaps, starting with a clean sheet of paper, seeking to discover the truth and occasionally finding it.
In reality, a criminal trial does not involve a search for any absolute form of truth; there is no search for the holy grail of what is true. A criminal trial is an exercise designed to decide whether the evidence produced by the prosecution is sufficient to make the jury, or the magistrate, sure that the defendant is guilty.
A criminal charge is not brought to trial unless it passes the tests set by the rules laid down in its clear published code of practice by the Crown Prosecution Service, led by the Director of Public Prosecutions. Those rules require there to be at least a 51 per cent. prospect of success, in the prosecution's assessment, before the case is brought. So, as the hon. and learned Member for Burton said, when a trial starts, the dice are, in effect, loaded against the defendant.
Although there is theoretically a presumption of innocence, in many minds there is a presumption of guilt. The danger is that the police, too, may be loaded with a presumption of guilt. The hon. Member for Sunderland, South has discovered that that occurred in at least two extremely important cases, and I know that he has been working hard on another, which the Home Secretary has so far refused to refer back to the Court of Appeal for a second time.
We must therefore try to ensure that the disclosure procedure does not, as I said earlier, swing the pendulum back to stack the odds unfairly against the defendant. However, in my experience, especially when appearing in front of the more modern type of judge rather than the lions of an earlier generation, disclosure is a pretty good idea for the defence as well as for the prosecution. The experience of those who have practised in recent years is that, if a defendant, through his lawyers, places a skeleton argument or a case summary before the judge, even before the trial starts, a clearer version of the defence is put to the jury before the trial ends.
Of course, a case statement by the defence requires a reasonable degree of disclosure by the defence. It can do no harm, provided that the rules are even-handed. The rules provided in the code of practice, which is now in 766 draft form and accompanies the Bill, seem fairly even-handed, but I have one concern about them that ought to worry the police.
The code of practice involves another bureaucracy, another burden of form-filling and book-keeping for police officers. It is to be hoped that there will be civilian support to enable police officers to concentrate on the investigation rather than on the disclosure provisions, which could be time-consuming. Well-organised police stations now have strong civilianised clerical support, and that will be needed to deal with a regime that I understand will apply to every case, however big or small.
Given sufficient support for the police, and given that the defence is allowed sufficient legal aid to pursue its reasonable inquiries within the disclosure regime, much of what has been provided should work. However, I have two specific misgivings about disclosure process.
The first question is: how are we to test whether the prosecutor has carried out his duty properly? It will not be possible for the defence to do that, although it may be possible for the scrutiny to be carried out by the new Criminal Cases Review Commission, when it comes into being—although it will probably take years for any case to receive such scrutiny, because it is in the nature of such cases to take a long time to come to fruition if there has been inadequate disclosure.
I therefore ask the Government what sort of audit or quality control will be carried out. Have procedures to ensure that there will be quality control already been drafted by the inspectorate of constabulary, and will they be carried out in every force and every division? It is important to be reassured that the regime will be followed properly, when the defence is in no position to examine what happens as closely as it might wish.
My second misgiving is more specific, and concerns the schedule of unused non-sensitive material. That must be sufficiently detailed to enable the accused and his advisers to make a judgment about the relevance of the material listed for their use.
We have already heard about the issues connected with pleas in mitigation. In an intervention, I referred to the fact that antecedent officers have now been removed from Crown courts. In my view, that was a seriously misguided economy. In the past, such officers, usually at least of the rank of sergeant, and sometimes inspector, were prepared to carry out inquiries.
Typically, I have known of cases in which a defendant has put forward in mitigation the claim that he has a home and a job to go to, but when that has been checked by the antecedent officer in the court, it has been found that the defendant was telling the truth about neither. Such a liaison facility no longer exists in most courts. Such inquiries are not part of the job of the probation service, nor is there any court official to carry them out. Making them is not part of the task of the CPS either. It would be welcome if the Government decided that, for the sake of the more accurate disposal of criminal trials, antecedent officers were to be restored.
The transfer of trial scheme seems unnecessarily complex, bureaucratic, costly and open to error—and it may take up more time than it saves. I hope that, even at this relatively late stage in the Bill's progress, the Government will be willing to consider proposals to redress those criticisms, which may well be valid.
767 Overall, the Bill seems to make some needed changes in the criminal justice system, but I hope that the Government will recognise that we must be prepared to review the changes, especially those relating to disclosure, so that, if there are signs of weakness in them, we can revisit each area on its legal merits, rather than in terms of political rhetoric.
§ Mr. Chris Mullin (Sunderland, South)
For the first time in the debate, the moment has come to hear from someone who is not a lawyer. I say that with all due respect to my hon.—and learned—Friends on both sides of the House who are lawyers, but justice is too important to be left entirely to lawyers. I apologise for my absence earlier in the debate, but I had an appointment with a Minister that had already been rearranged four times, and I did not think that I could rearrange it again.
I endorse what my hon. Friend the Member for Swansea, East (Mr. Anderson) said about the possibility of bringing the Bill before a Special Standing Committee so that we could take evidence from parties that have taken a particular interest in the issues covered by the Bill. There is a need for calm consideration of the issues, because they are rather important.
I also welcome the point made by almost everyone who has spoken—certainly by the hon. Member for Vale of Glamorgan (Mr. Sweeney) and the hon. and learned Members for Burton (Sir I. Lawrence) and for Montgomery (Mr. Carlile). I shall put it as the hon. Member for Vale of Glamorgan did, by saying that it is important to err on the side of too much disclosure rather than too little. If we must make a choice, that is the choice that we should make. As the hon. and learned Member for Burton says, the prosecution has many advantages and it is important to protect the defence.
Parts I and II of the Bill deal with disclosure. In my view, the Bill should be a little more controversial. Let me say at the outset that I entirely accept that the criminal justice system should not be just a game of chance in which clever lawyers vie to outwit one another without regard to the interests of justice. Therefore, to the extent that the Bill facilitates a genuine search for truth and justice, I welcome it. I do, however, have serious reservations. I am not at all convinced that the Bill as at present drafted represents an improvement on existing case law.
I understand that the Bill has been prompted by three main considerations, and the Home Secretary referred to some of those in his speech. First, defence lawyers—particularly in fraud trials—have been demanding vast quantities of documents, much of which are said to be irrelevant to the case. Secondly, unscrupulous lawyers are said sometimes to demand details of informants and other confidential information in the hope that the Crown can be persuaded to abandon the prosecution rather than jeopardise its sources. I have no doubt that there is some basis for both of those arguments, and examples can be found—some have been given in the debate—to illustrate them. I believe, however, that those reasons have been talked up by those interested in obscuring the third, and by far the most important, reason for concern about disclosure—that the failure of the police and the Crown to disclose evidence inconvenient to their case has been a feature of most of the proven and alleged miscarriages of justice in the past 20 years.
768 I shall provide some examples, because we should not talk about the matter in terms of dry theory. The scale of non-disclosure in some of the cases that are now celebrated is truly staggering. In the Birmingham case, about 2,000 statements judged by the West Midlands police to be non-material disappeared. In November 1975—four months after the Birmingham defendants were sent to prison for life, and while their appeal was pending—a number of genuine members of the Birmingham IRA were arrested, at least one of whom gave the police a detailed account of the Birmingham IRA, including a number of names. He gave the police the name of a man said to be one of those who placed the bombs in the pub. This happened in November 1975—one year after the pub bombings and a few months after the trial. Special Branch compiled a long statement from the man, a precis of which did not surface until 1990, and then only because someone with access to police archives felt sufficiently strongly to send a copy to Granada Television.
Among the documents disclosed at the 1991 appeal by the Birmingham Six was a statement from a colleague of the forensic scientist Dr. Skuse, who had obtained a positive test on a swab from the hand of a passenger on the Liverpool to Belfast ferry on the same evening that five of the Birmingham Six were tested by Dr. Skuse at Chorley. The Liverpool passenger had been released after he was found to have been innocently contaminated. Had that statement been available years earlier, it would have had a significant impact on the Crown case. It was obtained in time for the trial, but was not disclosed to the defence. The Attorney-General, in a letter to me dated 17 May 1991, said:It is most probable that an oversight or administrative error was responsible for what was undoubtedly a most unfortunate error".I have a number of letters from the former Attorney-General—now the Secretary of State for Northern Ireland—in which he talks about regrettable oversights which, he has been assured, were entirely inadvertent.
In the Guildford case, non-disclosure took place on an even more shocking scale. On 12 December 1975, four members of an IRA unit were captured at Balcombe street in central London, two of whom were interviewed the following day by Commander Jim Nevill and Detective Superintendent—now Sir—Peter Imbert. During the interview, the two IRA men admitted to bombing the King's Arms at Woolwich on 12 December 1975—one of the offences for which the Guildford Four had just been convicted.
In a further interview on 30 December, one of the men told Nevill and Imbert that four members of the Balcombe street unit had been responsible for the Woolwich explosion. Nevill and Imbert—according to their interview notes—both expressed concern at the possibility that innocent people had been convicted and an anxiety to get at the truth. Nevertheless, no further interviews took place, and no charges or further investigations followed. Solicitors acting for the four persons already convicted were not informed. The Director of Public Prosecutions was informed, but took no action.
When the Balcombe street IRA unit came to trial, not only were the two men who had given the statements not charged with the Woolwich bombing—which they had admitted to—but steps had been taken to excise from the 769 statements of the forensic scientists, Messrs Higgs and Lidstone, all references to connections between Woolwich, Guildford and the other offences for which the Balcombe street unit was obviously responsible.
At the Balcombe street trial, Commander Nevill told the court that he instructed Higgs to remove references to Woolwich from his statement at the instigation of the DPP. Let it not be said that it is only the police who lose inconvenient evidence—frequently in such cases it is the DPP. Detective Chief Superintendent Huckelsby was asked at what stage he had been asked to omit from his list of offences the Woolwich bombing and four others that appeared to be linked. He replied:This was discussed following the submission of my first major report to the DPP at a conference with counsel.Documents disclosed to the defence in the Guildford case in preparation for the 1989 appeal at which the convictions were quashed showed that one of the four, Gerry Conlon, had a cast-iron alibi all along—an alibi, incidentally, of which he knew nothing. He was not therefore in a position to request its disclosure. An alibi witness had seen Conlon asleep at the hostel at Quex road, Kilburn, at the time he was supposed to be carrying out one of the bombings many miles away. The witness's statement was properly passed by the police to the DPP, but it did not become available to the defendants for another 15 years.
I could cite many more examples. I realise that it could be said that all of these cases occurred many years ago and that everyone concerned has cleaned up their act since then. However, that is not my experience. I sat through four preparatory hearings for the final Birmingham appeal in 1991 in which Crown counsel Graham Boal tried the patience of the court with weeks of prevarication about disclosure. Nothing in Mr. Boal's demeanour suggested that the DPP had learnt any lessons from the Guildford convictions, which had been quashed two years earlier. On the contrary, I heard him repeatedly argue that the DPP would disclose to the defendants only what he considered to be relevant and only when he was ready to do so.
Non-disclosure has been a feature of many other celebrated miscarriages of justice, and some cases which are still alleged to be miscarriages of justice. In the Judith Ward case, non-disclosure was absolutely central. In the Stefan Kisko case, it was shown that he was convicted of a crime that he could not physically have committed, and it was many years before that poor man's conviction was quashed. Tomorrow, there is to be a debate on the Carl Bridgewater case, in which once again non-disclosure is a major feature. The Minister admitted during Home Office questions on 15 February that nine years had elapsed between the murder of Carl Bridgewater and the revelation that two fingerprints—so far unidentified—were found on the bicycle belonging to the murdered boy. Obviously, if that information had been available at the trial, it might have had a major impact on the outcome of the case. I am also dealing with the case of Brian Parsons, who is in prison for a murder that many people who have looked carefully at the case do not believe he had anything to do with.
The force involved in that case is the Devon and Cornwall police force, which has a good reputation—justifiably so in some respects. It behaved honourably 770 when clearing up the Birmingham bombings case, but in the case of Brian Parsons, which is on its own patch, it is doing everything in its power to obstruct proper access to exhibits. When people tell me that all the cases occurred a long time ago and things have changed now, I do not accept it.
If the pendulum has swung too far, as the Home Secretary and others believe, the police and prosecuting authorities have only themselves to blame. In the light of experience, it will be a long time before I accept that the good will of the Crown and the professional integrity of those involved in investigation and prosecution are a sufficient safeguard against wrongful conviction. That is the background to my approach to the Bill.
I have several specific reservations that are shared by just about everyone—including the Law Society and, I am pleased to say, Lord Runciman—who has taken a serious interest in miscarriages of justice. Those who are most enthusiastic about the disclosure aspects of the Bill are those who were among the last to realise that there was a problem with miscarriages of justice.
My first reservation is that, even with the best will in the world—and I accept that there are many investigators and Crown prosecutors of integrity—the Bill places too heavy a burden on the prosecutor. How can he or she be expected to represent the interests not only of the Crown, but of the defence, when it comes to deciding what is to be disclosed?
My second reservation is that the Bill's definition of what should be disclosed is too narrow. It describes it as any material thatin the prosecution's opinion might undermine the case".There is a simple solution to that problem which does not involve great expense or bureaucracy: the defence should have access to material at its place of storage and it should be able to copy material that it decides is relevant. The decision should be made by the defence, not by the prosecution.
My third reservation involves the list of available material with which the prosecution is obliged to supply the defence. How much detail should it go into? It is vital that any schedule should clearly show the significance of what is available.
My fourth reservation involves what is in the public interest. It is true that that is a matter for the court to decide, but we must pay careful attention to it. The record already shows that Her Majesty's customs, the police, the Crown Prosecution Service and the Government have an entirely different concept of public interest than do most ordinary citizens. The Matrix Churchill case offered a rare insight into the official attitude to public interest. It is no good saying that it is ultimately a matter for the judge. We saw yesterday that the Crown was prepared to go to some lengths to outwit the judge in the Matrix Churchill case. My hon. Friend the Member for Livingston (Mr. Cook) yesterday quoted a minute from a civil servant to the Secretary of State for Trade and Industry, which stated that the list of documents on the second public interest immunity certificate should be removed, because to retain the wordsmight increase the risk that the judge will call for copies of the documents.I draw the attention of the House to a book by Mr. David Rose called "In the Name of the Law". At pages 192 to 207, he sets out examples of cases where 771 the Crown relied on two extreme rogues, John Banks and Graham Titley, and did everything possible to prevent the court from discovering their backgrounds in the sure knowledge that the case would collapse were the truth to emerge. That is an important point because, with the role played by MI5 in investigating serious crime, there will inevitably be more claims that material cannot be disclosed on public interest grounds. I have no doubt that public interest has been, and will continue to be, abused. Our judges will have to be extremely vigilant—nothing in the Bill must limit their discretion.
My final reservation concerns the lack of sanctions to be used when material that should have been disclosed, is not, as a result of negligence or worse. It is a feature of all proven miscarriages that no one has ever been held to account for negligent or deliberate failure to disclose, however blatant.
§ Mr. Mullin
I hear my hon. Friend the Whip. I will, but as the only representative of non-lawyers present, I feel that I must set out my concerns.
§ Mr. Mullin
I am sorry—my hon. Friend, who is to reply to the debate, is also not a lawyer.
The problem of the guilty walking free is undoubtedly a serious possibility that causes considerable public concern. As I said before, however, I believe that it has been talked up with a view to distracting attention from reality. We cannot proceed on the basis that everyone involved comes to court with good will and integrity because the record shows otherwise. We must therefore ensure that the Bill contains safeguards and that the disclosure permitted is as wide as possible.
§ Mr. Alun Michael (Cardiff, South and Penarth)
It is a great pleasure to follow my hon. Friend the Member for Sunderland, South (Mr. Mullin), who has done so much to try to restore confidence in the criminal justice system by being critical of it. Those two elements are not inconsistent: those who care most about the system are prepared to be critical of it and to expose its failures. I am also proud to be following my hon. Friend as the second non-lawyer to participate in the debate, which is of importance to the general public, not just to lawyers. I sometimes think that debates in the House on criminal justice are dominated too heavily by lawyers.
Today's debate goes to the heart of the criminal justice system. It goes to the heart of two points that both Parliament and the public share as items of great concern. The first is the frustration felt when the guilty walk free or when the resources of justice are diverted into a waste of time and energy; the second is the fear that the innocent will be incarcerated. We need to cut out the massive waste of time involved in needless disclosure and the pursuit of fishing trips, as they have been described. It is right for my hon. Friend the Member for Sunderland, South to balance that aim with the importance of ensuring that the way in which we achieve it protects the innocent and does not go too far the other way.
772 I am not new to such issues; during the passage of the Criminal Justice and Public Order Bill in 1994 I moved amendments that, had they been accepted, would have introduced a system of defence and prosecution disclosure in a balanced way. Since my hon. Friend the Member for Blackburn (Mr. Straw) has been shadow Home Secretary, he has repeatedly reinforced the need to tackle the issue—he made specific proposals to do so in his speech on 5 April 1995.
I am not sure whether the complaints about payment made by the hon. and learned Member for Burton (Sir I. Lawrence) were made personally on behalf of his union, so I shall not comment on that part of his speech, but he made the one divisive contribution to the debate—perhaps with his tongue in his cheek. He has been described as the villain's friend—he should not express surprise at our support for a measure that helps justice. The Labour party's attitude is always to offer critical and constructive support for such measures. He had the grace to welcome our approach and, in the same spirit, I invite him to support Labour measures to tackle violence, the carrying of weapons, drug-related crime and stalking, and to nip things in the bud when youngsters start to offend. Those are just a few of the issues on which he—like the Home Secretary—has voted against our proposals. If he will join us in the fight against crime, we will welcome that.
§ Mr. Michael
It is the absolute truth and no amount of circulars from Conservative central office or misleading statements made outside the House by the Home Secretary can fly in the face of evidence—contained in the record of the House, in Hansard—of the way in which we have sought to be both tough on crime and tough on the causes of crime.
As my hon. Friend the Member for Blackburn said, the atmosphere surrounding the speeches today, including those of the Home Secretary and my hon. Friend, was not as divisive as usual; those speeches were about finding a way to resolve the two halves of the dilemma.
I believe that the Home Secretary missed the speech by the hon. and learned Member for Burton, which I have just said—I hope that the Home Secretary will listen—was the one divisive contribution. The aim of the Home Secretary, the shadow Home Secretary and others has been earnestly to deal with the issues that the Home Secretary brought before the House. I have simply balanced the contribution of the hon. and learned Member for Burton.
My hon. Friend the Member for Blackburn emphasised the importance of process in setting standards of justice and in the public reputation of the court system. We should be aware that people feel considerable disquiet about the operation of the criminal justice system.
It is disappointing that the organisation to investigate miscarriages of justice is not yet active and effective. Tomorrow, we shall debate a case that it would be appropriate to refer to that organisation. I say that because, if we are to speed up processes and avoid the duplication and reading of excess material, we need to ensure that machinery is in place to avoid and to correct miscarriages of justice.
What sanctions will exist on the prosecution? Will the Minister agree to explore ways to strengthen the law regarding any failure to fulfil those obligations? 773 That argument was strongly made by my hon. Friend the Member for Blackburn. We must have a balance of duties and rights and, if we lighten the load on the prosecution, we must be able to trust the prosecution to achieve the balance. There must be a heavy punishment when that trust is breached. In Committee, we should consider the emphasis that is placed on the prosecution's responsibilities to disclose, not only when—in what laymen would understand by that term—a case would be undermined, but when doubt might be cast on a case by the evidence that is available to the prosecution.
What will the Minister's attitude be to the arguments made by my learned Friend Lord Williams of Mostyn in another place about the circulation of evidence as pornography in prison? Several cases have come to light, causing outrage, and I took the matter up some years ago. I hope that the Minister will be willing to accept, or to table, amendments in Committee. It is surely right for us to impose strict protection so that such material is not made available or circulated in prison or elsewhere. The prisoner has a right to see material that is to be used in the case against him and to discuss it with his lawyer, but that material need not be in his possession, and it need not be possible for him to circulate it in prison.
The hon. and learned Member for Montgomery (Mr. Carlile) made a valid point about clause 45. The requirement of a conviction may be an obstacle to some cases being treated properly. An addition is needed to give the court the power, if given evidence that there is a good reason why a conviction could not be sought or obtained, to consider the available evidence. It should not be too difficult to meet that point, and I hope that we may discuss that issue in Committee.
The hon. and learned Gentleman was right to emphasise the victim's interests. We are right to insist on reminding the courts that crime, especially serious crime, is a crime because of damage done to a victim or victims. I am not sure that a victim statement is the right way to proceed, especially if the responsibility for preparing the statement is pushed on to the probation service. The Government rejected a proposal that I made a couple of years ago to require the Crown Prosecution Service to consider and consult the victim before downgrading or dropping serious charges. We must find a mechanism that will properly bring the victim's needs into the centre of consideration.
My hon. Friend the Member for Swansea, East (Mr. Anderson), in an excellent speech, suggested a Special Standing Committee for the Bill. This is the second measure—the first was the Security Service Bill—about which it has been possible to say, "Here is a measure that is doing something worth while and sensible. Instead of arguing divisively across the Floor of the House, let us try to ensure that the Bill is better when it leaves the Chamber than when it came in, and that it succeeds in meeting the requirements of justice."
My hon. Friend the Member for Blackburn mentioned the important issue of pleas in mitigation being open to challenge. I have sat in magistrates courts—especially juvenile courts—and heard mitigation, after a gap for the preparation of a social inquiry report, and been bemused, having been in court on the previous occasion, because there appeared to be no relationship between the 774 mitigation and the events that had convinced the court that a finding of guilt was appropriate. We must tackle that anomaly.
We should heed the warnings by my hon. Friend the Member for Sunderland, South that in some cases things go wrong and innocent people are found guilty. I am especially worried after studying the case of Mr. Bernard Wilson, who was found guilty in my constituency of events arising from the involvement of a police informer in promoting the activities that led to the prosecution. The judge expressed grave concern, and I continue to feel much concern, about the way in which the Crown Prosecution Service dealt with that case. Many remaining serious issues must be tackled if we are to restore confidence in the criminal justice system.
In Committee, we shall work constructively to improve the Bill. We all want a criminal justice system that protects the innocent and ensures the conviction of the guilty. The Bill is one step along the path of reform. We need to ensure in Committee that we end up with the best possible and most balanced legislation, but the measure is long overdue, and it is only one step. We have a long journey to travel before we can claim to have restored public confidence in the criminal justice system.
§ The Minister of State, Home Office (Mr. David Maclean)
I was going to take all of the four or six minutes allocated to me to reply to some interventions, but I must start by putting part of the record straight.
I detected no divisiveness in the speech of my hon. and learned Friend the Member for Burton (Sir I. Lawrence). Moreover, the debate was good natured throughout and the opening speeches by my right hon. and learned Friend the Home Secretary and the hon. Member for Blackburn (Mr. Straw) were paragons of virtue in cross-party consensus.
The hon. Member for Cardiff, South and Penarth (Mr. Michael) cannot come to the Chamber and try—even in a low key, even in a quiet bluster—to restate the record of what Labour has done. Purely what he said in his introduction forces me to take about one minute of my time to place on the record some of the information that I extracted from Hansard last week, because I found some time to peruse Hansard carefully.
I went back only as far as 7 March 1983, when the House debated the prevention of terrorism Act. Labour voted against. [HON. MEMBERS: "Guilty."] In November 1983, Labour voted against the Police and Criminal Evidence Act. [HON. MEMBERS: "Guilty."] In January 1984, Labour voted against the prevention of terrorism Act. [HON. MEMBERS: "Guilty."] In February 1985, Labour voted against the prevention of terrorism Act. [HON. MEMBERS: "Guilty."] In January 1986, Labour voted against the Public Order Act. [HON. MEMBERS: "Guilty."] In February 1986 and February 1987, Labour voted against the prevention of terrorism Act. [HON. MEMBERS: "Guilty."]
Then, in January 1988, when we voted on the Criminal Justice Act, increasing the penalty for cruelty to children to 10 years, Labour voted against. [HON. MEMBERS: "Guilty."] Labour voted against the proposal to increase the maximum penalty for dealing in hard drugs to life imprisonment. [HON. MEMBERS: "Guilty."] It voted against the maximum penalty of life imprisonment for taking a 775 gun to a crime. [HON. MEMBERS: "Guilty."] Labour also voted against the Attorney-General's right to appeal against lenient sentences. [HON. MEMBERS: "Guilty."] Labour voted against the Government in February 1988, January 1989 and in March 1990 when the prevention of terrorism Act was renewed. [HON. MEMBERS: "Guilty."] Labour also voted against the prevention of terrorism Act in March 1991. [HON. MEMBERS: "Guilty."]
The Criminal Justice Act 1991 gave the courts the power to impose longer sentences on persistent, violent and sexual offenders. Labour voted against it. [HON. MEMBERS: "Guilty."] Labour voted against the requirement for parents to attend court proceedings with their children. [HON. MEMBERS: "Guilty."] The Act gave the courts the power to make the parents of 16 and 17-year-olds pay their children's fines. Labour voted against that and other measures in the Act. [HON. MEMBERS: "Guilty."]
For the sake of brevity, I shall move on to February 1992, when Labour voted against the prevention of terrorism Act. [HON. MEMBERS: "Guilty."] It voted against that Act again when it was renewed in 1993. [HON. MEMBERS: "Guilty."] The Criminal Justice and Public Order Act 1994—we are now up to date—reformed the right of silence. Labour voted against it. [HON. MEMBERS: "Guilty."] It did not vote against the police stop-and-search powers, but it argued against them. Labour had no opinion about the whole Act: so it decided to abstain rather than support it. [HON. MEMBERS: "Guilty."] Labour voted against the establishment of secure training centres and against the prevention of terrorism Act in March 1995. [HON. MEMBERS: "Guilty."]
§ Sir Ivan Lawrence
Will the Labour party's repeat offending entitle it to the sternest of minimum sentences in the wilderness for the next 20 years?
§ Mr. Maclean
I have examined Labour's record on law and order and I have discovered that it has a considerable criminal record.
Of course, I welcome the Opposition's support for the Bill. I welcome also what the hon. Member for Blackburn said on television on Sunday, in supporting some of the measures suggested by my right hon. and learned Friend. I welcome his half about-turn in supporting the prevention of terrorism Act. Those actions are correct. However, because Labour has not voted against absolutely everything that we have proposed in the past few months, it does not expunge its record of voting against our proposals in the 1980s. That record speaks for itself: it is an absolute disgrace.
I refer now to some of the issues raised during the debate. My hon. and learned Friend the Member for Burton said that judges should have discretion to waive the rules. He called for more flexibility, but he did not refer to any rules that he thought were too inflexible. He may have in mind the requirement to produce a defence statement in all Crown court cases, which was raised during debate in another place. The Government said then that the Bill lays down a clear rule because of the advantages in all cases of narrowing the issues in dispute before the trial, for which defence disclosure is essential.
776 The hon. Member for Swansea, East (Mr. Anderson) called for the establishment of a Special Standing Committee. I am not persuaded that the Bill meets the criteria for that procedure.
§ Mr. Donald Anderson
There has not been a Special Standing Committee in relation to England and Wales for 12 years. As the Home Secretary has said, the procedure was set up specifically to consider non-controversial Bills—I believe, of this nature. Given that there are no time constraints, how can the Government not accede to that request?
§ Mr. Maclean
We should not grab this Bill and send it to a Special Standing Committee just because the hon. Gentleman believes that it is remotely suitable and because no other Bill has been before such a Committee in 12 years. As the debate in the other place showed, there is a great deal of interest in the Bill. There has been an awful lot of consideration and scrutiny of the Government's proposals, as set out in the discussion paper. I cannot see what role a Special Standing Committee would have that was not performed by the experts in the other place. The legislation has been subject to considerable detailed scrutiny.
My hon. Friend the Member for Vale of Glamorgan (Mr. Sweeney) asked how we can guard against inadvertent non-disclosure by the prosecutor. The Bill requires the prosecutor to give the accused a schedule of all material that is not sensitive. If the accused believes that material disclosed in the schedule may help the defence, he may apply to the court to obtain it.
I shall touch upon several points raised by the hon. Member for Blackburn. He referred to categories of sensitive material in the code of practice and suggested that they included material given in confidence, which he thought was a very wide-ranging definition. The code does encompass a number of categories of sensitive material, including material given to the police in confidence. However, the prosecutor, and not the police, must decide whether the material meets the test for disclosure in the Bill. If the material is sensitive and the prosecutor seeks to withhold it on public interest grounds, the court will decide the issue.
The hon. Gentleman suggested that the test for primary prosecution disclosure should be "casts doubt upon" rather than "undermines". We believe that "undermines" is the right test. It catches material that has an adverse effect on the prosecution case and should be disclosed. However, it is not so wide as to require the disclosure of anything that has no more than a small, peripheral effect. The alternative formulation would move us backwards to the current unsatisfactory disclosure test and it would put unnecessary burdens on the police. No doubt we shall debate the issue in more detail in Committee.
The hon. Gentleman inquired about prosecution disclosure only after a not guilty plea in summary trials, and he suggested that that might result in delay. We understand his concern, but we take a slightly different view. In summary-only cases, disclosure currently occurs after a not guilty plea; the Bill does not change that. In either-way cases, it will usually be clear whether the accused intends to plead guilty or not guilty. There is also the incentive of a discount in sentence for an early guilty plea, and there is a disincentive if there is no such plea. We believe that that should eliminate delay and reduce costs also.
777 The hon. Gentleman suggested that a breach of a code of practice by the police should lead to disciplinary or criminal proceedings. If the breach is serious and amounts to a criminal offence, a prosecution may be brought. It is correct that that should occur. In other cases, a breach may result in disciplinary proceedings under the arrangements that we are devising currently following the Police and Magistrates' Courts Act 1994 and the new disciplinary procedures for police officers. The court may take such a breach into account if it is relevant to the proceedings.
I come to the final main point that the hon. Member for Blackburn raised—we may deal with some others in more detail in Committee. He suggested that sanctions should be imposed on the prosecution as well as on the defence, for failure to comply with the Bill's requirements. I understand his concern, but sanctions different from adverse comment, for example, will apply to the prosecution. For example, failure to make primary prosecution disclosure in the Bill will absolve the defence of its requirement to make defence disclosure. A change in the prosecution case must be notified to the accused, otherwise the court can stay the proceedings. I think that it is a good Bill.
§ Mr. Straw
I am grateful to the right hon. Gentleman for referring to the points that I raised—I know that it was a long list. Can he comment on the two other main issues to which I referred: the possibility of an appeal by the prosecution against a decision by the judge to end counts on the indictment or to dismiss a case altogether before it goes to the jury; and whether the prosecutor should have a role in pleas in mitigation?
§ Mr. Maclean
We considered the first point carefully. We decided that we could not see a role for it and we did not include it in the Bill. No doubt the case in favour will be argued sensibly in Committee. As to the prosecutor's role in a plea in mitigation, we see some merit in the prosecutor's presenting to the court the full facts of the 778 case as they affect the victim. We must ensure that the effect on the victim is made known to the police. That information must then be passed to the Crown Prosecution Service, so that its prosecutors have the full facts and can ensure that the court is aware—certainly before sentencing—of the impact on the victim and can take that into consideration. While victim impact statements have a superficial attraction, there are some potential difficulties. For example, a defence counsel might want to question or cross-examine on some of the things that are said in a victim impact statement.
What matters to the law-abiding public is a criminal justice system that pays proper regard to the needs of victims and witnesses as well as defendants. The Bill is another stage in redressing the balance in our criminal justice system, which for too long has protected criminals at the public's expense. The pendulum will not swing wildly. The Bill's provisions are here to stay for some considerable time, and that should be the case.
The Bill makes improvements across the board to procedures for dealing with criminal cases. It will do much to improve public confidence in the criminal justice system. That is why it deserves the support of all hon. Members.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).