Criminal Cases Review Commission (Information) Bill
(8 years, 10 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
William Wragg (Hazel Grove) (Con)
I beg to move, That the Bill be now read the Third time.
I thank colleagues from across the House who have joined me to support my Bill before it goes to the other place, where it will hopefully complete all necessary stages before we reach the guillotine of running out of parliamentary time. It has been an honour and a privilege to embark on the process of piloting a private Member’s Bill through our legislative process. I was fortunate to be drawn in the ballot in my first year as a Member of Parliament, and when I was elected just nine months ago this Sunday, I never imagined that I would be standing here and leading a debate on a new Bill. At the time I had no idea where the Public Bill Office was, let alone how it performed such a vital role in our legislative process. Neither did I know how skilled, kind and helpful its Clerks and staff would be to me, and I put on record my thanks to the Clerks of that office in particular, because without them this Bill would surely have fallen by the wayside long before now.
The process has proved to be a steep yet valuable learning curve. Before coming here I watched several Bill progress through Parliament and be debated and voted on in the Chamber, and I understandably believed that that was where legislation got made. Only once I went through the process myself did I understand how much work goes on away from the Chamber. Speaking here is the easy part. I know how much of our legislative process relies on negotiating and navigating timetables and calendars, or on running down corridors with five minutes’ notice to get the co-signature of one last Member before the deadline.
I congratulate my hon. Friend the Member for Dudley South (Mike Wood) on his Bill passing its Third Reading some moments ago. It is an important piece of legislation, and I am pleased that we have been able to mutually support each other as we muddle through this strange but enlightening process. However, we have made it, and I am delighted and honoured to promote the Third Reading of my Bill today. I do so not only because at several points over the past nine months I feared that it may not come to pass, but because of the Bill’s importance as a valuable piece of legislation.
Following my selection in the ballot, I discussed with colleagues potential topics for my Bill. I wanted to be involved in something that would do good and make a real difference to people’s lives, and improve the justice system in an important way. The Bill seeks to make a small but significant improvement to our criminal justice system, and specifically to the appeals process surrounding miscarriages of justice and the gathering of available evidence and information for such cases to be investigated.
If enacted, the Bill would allow the extension of powers for the Criminal Cases Review Commission to obtain information of evidence, testimony, documents and other material that would assist in the processing of appeals and review cases where a miscarriage of justice is believed to have taken place. In essence, it would allow the CCRC to obtain such information from a person other than one serving in a public body, to which it is currently restricted. That new measure would apply to private sector organisations, persons employed by or serving in private companies, and private individuals. If passed it will strengthen the CCRC’s ability to overturn wrongful convictions and miscarriages of justice, and improve further our system of law and order, which is rightly the envy of the world.
To set the Bill in context, I intend to set out the working of the CCRC and the problem that my Bill seeks to resolve. I will then go on to detail what the Bill does and say how the amended law would work in practice. Lastly, I will explain why I believe that the Bill is necessary, how it would improve justice in our country, and—critically—why I believe that it deserves the support of the House today. I shall also attempt to provide some answers to the points raised in Committee. I hope to allow time for other Members who may wish to speak, and I am very open to interventions. The Bill has already demonstrated its cross-party support by its broad range of co-signatories, and it is important that the House now shows its full support for these new measures.
The CCRC was set up as an independent public body in 1997 by the Criminal Appeal Act 1995 to investigate possible miscarriages of justice, and it was the world’s first publicly funded body to review such cases.
Mr David Nuttall (Bury North) (Con)
It might not be known outside the House that my hon. Friend had the foresight to secure for his Bill the signature of the right hon. Member for Islington North (Jeremy Corbyn), who is now the Leader of Her Majesty’s Opposition. That will no doubt aid the Bill’s passage through the House.
William Wragg
I thank my hon. Friend for that intervention, and as he will see by the vast numbers of Labour Members here today, the influence of that signature has been a fantastic achievement.
The CCRC was set up in the wake of notoriously mishandled cases such as those of the Guildford Four and the Birmingham Six—two high-profile cases where two groups of men were convicted and imprisoned for connections to bombings carried out by the IRA in the 1970s. On a serious note, it was because of those particular cases that the Leader of Her Majesty’s Loyal Opposition was so keen to lend his signature to the Bill.
However, some 10 or 20 years ago these convictions and a review of evidence and police conduct during the investigation revealed serious breaches of due process, and, in the case of the Birmingham Six, serious accusations of police brutality. Therefore, the convictions were eventually quashed and ruled as unsafe. Moreover, senior police officers in both cases were later charged with conspiracy to pervert the course of justice and the Birmingham Six were eventually each awarded compensation ranging from £800,000 to £1.2 million for their wrongful conviction.
The consequences of these cases led, in 1991, to the Government setting up a royal commission on criminal justice. The royal commission reported in 1993 and led to the Criminal Appeal Act 1995, which established the CCRC in 1997. Parliament established the CCRC specifically for the body to be independent of Government and, although sponsored and funded by the Ministry of Justice, to operate its statutory functions independently. However, a drafting anomaly in the 1995 Act meant that a key power was omitted from the CCRC, meaning that it could not require evidence to be provided from privately held sources, whether individuals, corporations or other bodies. It is the need to address that anomaly that brings us here today.
In preparing to present the Bill to Parliament, I visited the Birmingham headquarters of the commission to meet its chairman, chief executive, head of casework, some of its case handlers and investigators, and other staff to see its facilities and operation at first hand. I am delighted to say that some staff have been able either to attend the House today or to watch the proceedings from Birmingham. The House should be clear that the commission is very keen for the Bill to pass and to have these powers, for which it has been calling for some years. I want to take this opportunity publicly to thank the staff of the CCRC for hosting me on my visit, and for all the information, support and advice it has provided to me over the past few months. In particular, I would like to thank long-serving staff member and senior case handler Mr Miles Trent, who has been a very valuable help.
I shall go on in a moment to explain precisely how the Bill will address the original anomaly in the law, which has prevailed for almost 20 years. Before doing so, however, I think it is important that the House bears in mind why the Bill is important. I wish to remind Members of the real human stories behind what can seem the rather dry business of legislation and regulation. Anyone who has ever been subject to a miscarriage of justice will attest that it is a deeply traumatic and damaging experience, often taking years away from somebody’s life while they work through the appeals process, trials and retrials, often from the confines of a prison cell. While not an easy or pleasant experience for anyone at any time, the heartache and anguish will be more acute for those who know, in the back of their mind, that they are innocent and that the British justice system has failed them. In such cases, the CCRC is often a victim’s only opportunity of salvation.
Although the number of cases the CCRC takes on is small compared with the overall number of criminal prosecutions each year, and the number of cases referred and quashed is even smaller, for those few victims of a miscarriage of justice in prison for crimes they have never committed, and subject to the abuses of process and powers of the system, it must be a truly harrowing existence for both them and their families. If I may, I would like to illustrate this point with one particular case which, although upsetting, contextualises the importance and seriousness of the commission’s work. I should say before continuing that this case has already been on the public record.
Sally Clark, a solicitor aged 42, was jailed in 1999 for allegedly killing her 11-year-old son Christopher in December 1996 and her eight-week-old son Harry in January 1998. An appeal in 2000 failed, but she was freed in 2003 after a fresh appeal, following a referral from the CCRC. The jury at the trial was told by an expert witness, Professor Sir Roy Meadow, that the probability of two natural unexplained cot deaths in the family was 73 million to one, a figure for which the Royal Statistical Society later said there was no statistical basis. However, despite her eventual release from prison after four years, Sally Clark died at her home in March 2007 from alcohol poisoning. At the time, the chair of the CCRC, Professor Graham Zellick, said:
“Sally Clark should never have been convicted. She should have succeeded at her first appeal. It should never have taken two years’ work by us and a referral before she was released, by which time she was broken in mind and body.”
Our justice system is one of the most respected in the world, but mistakes can and do happen occasionally. When this is the case, the system to right the wrong and to protect innocent people should be strong so that we avert cases such as Mrs Clark’s. My Bill seeks to strengthen that system. I referred to the legislative anomaly in the original 1995 Act, which gave rise to the need for the Bill. Let me explain how the CCRC currently operates.
The CCRC currently has the power to investigate alleged miscarriages of justice in England, Wales and Northern Ireland, and to refer convictions and sentences to the relevant courts for appeal. The commission investigates convictions and applications by the offender, or, in the case where the offender has died, at the request of relatives. It has special powers to investigate cases and to obtain information it believes is necessary to review a case. If the CCRC concludes there is a realistic prospect that the Court of Appeal will overturn the conviction, it can make what is termed a referral and send cases back to court so that an appeal can be heard. Applications are free to make to the CCRC and defendants cannot have their sentences increased on account of having made an application for review. However, as the commission usually deals with cases already appealed once, if the commissioners can send cases for a review, it is usually on account of new evidence or a new legal argument that has come to light. This being so, their ability to gather information is critical to a successful operation.
The subject of the Bill hinges on what are commonly referred to as section 17 powers. Section 17 of the Criminal Appeal Act 1995 gives the CCRC the power to require public bodies and those serving on them to give it documents or other material that might assist it in discharging its functions. This includes the police, local councils, the NHS, the Prison Service and so on. It should be clear how all such bodies could and do serve as vital sources of information in appeal cases: the police provide criminal evidence and interviews; councils often provide CCTV footage; the NHS can supply details of injuries, in the case of violent crime; and the Prison Service can provide vital information about the behaviour or statements of prisoners seeking an appeal.
Those are just the most common examples of public sector sources of evidence on which the CCRC relies to do its work. There are, of course, dozens of others. However, it currently has no equivalent powers to compel private organisations and individuals to provide similar information, and has long found this to be a problem. Incidentally, this is in contrast to its counterpart in Scotland, the Scottish Criminal Cases Review Commission, which has held these powers since its inception. The Bill would allow the CCRC to make an application to the courts to require the disclosure of new evidence held by private bodies and individuals. As I mentioned, it already has those powers for public bodies. The inability to obtain information from private organisations and individuals has limited the CCRC’s actions and can cause unnecessary delay in the review of cases it undertakes and waste its limited resources.
During my visit there, I learned that the CCRC operates with an annual budget of about £5.5 million and employs just under 90 staff, including 12 highly experienced commissioners, among whom were senior lawyers, civil servants, investigative journalists and scientific experts. Each year, it receives between 1,000 and 1,500 appeal applications, and last year, 39 of them were referred back to the Court for review.
Mr Nuttall
Does my hon. Friend expect an increase in the number of applications as a result of the power in the Bill to apply for documents from private sources?
William Wragg
I will come to that in detail later, but the CCRC is a reactive body—it does not proactively seek cases to review—so I suggest that what my hon. Friend alludes to would not take place. However, I will cover that in more detail in a moment, if he will bear with me.
The CCRC’s long-term referral rate—the cases that, following investigation, it believes should be reheard in the Court of Appeal—is just over 3%. However, about half the applications it receives are not taken to the investigation stage, as they must first go through the regular criminal appeals process. For the cases the CCRC goes on to investigate, therefore, a referral rate of about 7% is more representative. Nevertheless, this indicates how uncommon it is to find a sufficient weight of new evidence to overturn previous convictions. That evidence must be relevant, accurate and compelling.
The House will be aware that the current working arrangements and effectiveness of the CCRC were the subject of a dedicated inquiry by the Justice Select Committee in the last Session. The impetus behind the Bill comes directly from some of its recommendations last March. I am grateful to have had the support of Members of both the previous and the current Committee in getting the Bill to this stage.
In its report, the Committee said:
“The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support. Successive Governments have no excuse for failing to do this and any further continuing failure is not acceptable.”
The report went on:
“It should be a matter of great urgency and priority for the next Government to bring forward legislation to implement the extension of the CCRC’s powers so that it can compel material necessary for it to carry out investigations from private bodies through an application to the courts. No new Criminal Justice Bill should be introduced without the inclusion of such a clause.”
I stand here today with just such a new criminal justice Bill and hope to put right the failure by successive Governments to which the Committee referred.
Let me turn to the new powers in the Bill and how their implementation would work in practice. The Bill would insert a new section 18A in the Criminal Appeal Act 1995, which would enable the CCRC to obtain a court order requiring a private organisation or individual to disclose a document or other material in their possession. As with the current power to require material held by public bodies, the new disclosure requirements will apply notwithstanding any obligations of secrecy or other limitations on disclosure, including statutory obligations or limitations. This will mean that companies will not be able to use excuses such as the Data Protection Act to deny the CCRC information, nor will it be possible to cite information that carries a security classification, including restricted and secret information, as a reason for non-disclosure. This could be particularly important in cases of courts martial, which the CCRC has been involved in investigating since the Armed Forces Act 2006.
Even after the enactment of the Bill, the CCRC should always attempt at first to obtain any information voluntarily before reverting to a court order. Not only would that build a better accord with the private individual or organisation concerned, it is also likely to be more expedient than an application to the court.
I should state for clarity that the provisions would extend to England, Wales and Northern Ireland, in relation to which the Northern Ireland Assembly will be invited to pass a legislative consent motion. Scotland will be unaffected because, as I said, it has its own powers.
I mentioned how low, at 7%, the referral rate was for cases that the CCRC investigates and sends back to the Court of Appeal. The shadow Cabinet Office Minister, the hon. Member for Caerphilly (Wayne David), asked in Committee—I am grateful for the opportunity to answer some of these points on Third Reading—whether this Bill, by virtue of increasing the CCRC’s powers and therefore its scope for conducting investigations, would increase the rate of referral and therefore the workload, which neatly taps into the point raised by my hon. Friend the Member for Bury North (Mr Nuttall). I must stress that it is not our job, nor is it the purpose of this Bill, to increase the referral rate per se. Far from it; indeed, the low rate is a testament to how robust and rigorous our criminal justice system is, indicating that no evidence of a miscarriage of justice was to be found in the original case.
We must remember that not all information supplied to the CCRC will necessarily lead to an appeal. The commission’s mandate is not to secure as many referrals and overturn as many convictions as possible; it is to thoroughly investigate alleged miscarriages of justice. In some cases, privately held material might help to identify these miscarriages, and that material may lead to some convictions being referred to the Court of Appeal and subsequently quashed, in circumstances where those cases would otherwise have been turned down. In other cases, privately held material might persuade the CCRC not to refer a case for appeal where it was otherwise minded to refer.
It would be natural to anticipate that the receipt of the proposed powers should lead to an increase in referrals to the Court of Appeal, as the CCRC believes it is sure that there are miscarriages of justice that have gone unremedied because of the lack of power. However, I want Members to be clear that the referral rate is not a direct proxy for the effectiveness of the commission’s work. Increasing referrals is not to be confused with being the objective. Our job as parliamentarians is to ensure that the CCRC—and, more widely, the justice system as a whole—has all the powers and processes it needs to operate in the best way possible.
I want now to elaborate on why this change in the law is necessary, and I thank the House for its forbearance.
During my term in Birmingham, those at the commission explained that, in the 18 years of its existence, the powers under section 17 have been an essential tool of that body. The power extends to the information from public sector bodies, as I explained earlier, but it should also extend to public bodies held at arm’s length. The commissioners also explained that the absence of power to obtain material in the private sector has often operated to the disadvantage of applicants to the commission.
Currently, where material relevant to the CCRC’s work is held outside the public sector, the commissioners are reliant on requesting voluntary disclosure by the relevant individuals or organisations. Although voluntary disclosure is not uncommon, organisations increasingly regard themselves as being unable to assist the CCRC as a result of statutory restrictions on the disclosure of information. Even where voluntary disclosure is made, it will often be after protracted negotiations, causing lengthy—and, indeed, expensive—delays in the case review process.
Solicitors’ firms provide one such example. One would have thought that solicitors would be among the most co-operative of sources, but that is not always so. In the past, the commission has seen a good level of co-operation in respect of its requests for case files from solicitors who represented applicants at trial and/or on appeal. In part, that level of co-operation has been thanks to relevant professional codes of conduct that apply to solicitors. In more recent times, however, and perhaps as a result of increasing pressures on legally aided defence firms, the commission has faced greater difficulties. It is often readily apparent that requests from the commission are placed at the bottom of solicitors’ lists of priorities. On occasion, the commission has been faced with protracted negotiations over who bears the cost of transferring the materials in question.
The commission tends to encounter four typical situations that, as a result of its lack of powers in relation to the private sector, operate to the applicant’s disadvantage. These are, first, the inability to obtain information from a private individual; secondly, the inability to obtain information from private sector organisations; thirdly, partial information or only a summary of information is provided, which the commission is not in a position to scrutinise or verify; and fourthly, information sources are obtained, but protracted negotiations with the private sector create lengthy delays.
Alarmingly, members of the commission told me that, in several instances, with respect to the information it seeks from an organisation, it has experienced significant and repeated difficulties. Against that background, the commission has decided that it would be fruitless to pursue the information in question and therefore does not do so. The current lack of power does not affect isolated cases alone, but can cause a systemic problem relating to a source and a repeated basis, leading to not one but potentially many miscarriages of justice incapable of being remedied.
I know that the commissioners share the view that it is highly regrettable that their inquiries into miscarriages of justice should be impeded by the refusal of a private organisation or witness to provide material. The absence of any compulsion exercised at the instance of the CCRC may result in the victim of a miscarriage of justice suffering continuing imprisonment, with all the continuing social consequences of having a criminal conviction. That cannot be right.
Moreover, the problem has become more acute in recent years, because much of the responsibility for the material held by public bodies when the 1995 Act was envisaged has since been entrusted to private sector bodies. The number of private organisations holding relevant information has increased dramatically, with the contracting out of public services to the private sector becoming more commonplace. Additionally, recent statutory data protection trends have reinforced the issue of confidentiality and have affected the voluntary co-operation of private bodies. There is a real risk that applicants to the CCRC will be at a significant disadvantage unless the CCRC is afforded the facility to obtain material held in the private sector.
Examples of private bodies that may now hold vital information relevant to the review of a case that may once have been in the public sector and within the CCRC’s scope but is now outside it include private health clinics, forensic experts, charities, campaigning groups, law firms, news agencies, probation services—now largely contracted out—banks, private schools, shops, department stores and public transport companies.
Let me illustrate this by using a few examples that the caseworkers from the commission shared with me where they believe the current lack of powers has led to long delays in a case review or even directly to its failure. Private companies can be a vital source of information, as we see in a case I was told about during my visit to Birmingham. The commission was looking into the case of an HGV driver who had been convicted in 2013 of serious sexual offences and sentenced to 15 years in prison. The commission wanted access to some of the data held by an employer which might have supported an alibi. Those inquiries evolved into a search for timesheets within the private company, but the company would not co-operate. It is not really clear whether it even checked its records. The commission was not able to obtain the information and proceeded without it, and the case was not referred.
I mentioned earlier the importance of the Forensic Science Service. A key aspect of the commission’s work is re-examining and re-testing material from crime scenes that was submitted as evidence in the original or earlier appeal trials. The recent closure of the nationalised FSS and its replacement with a contracted-out service has also highlighted this gap in the current law, the result of which is that the CCRC no longer has the power to compel the production of forensic material which it had when the FSS was a public body. This type of material will be held by private companies and may not be available to the commission in future.
Another common source of evidence is CCTV. I learned of another example where an applicant, convicted and jailed for a serious armed robbery in a shop, alleged that the expert facial mapping evidence presented at the trial was flawed. The commission wished to instruct an expert to conduct further tests, but the owner of the shop in question refused to provide information about the make and specifications of the CCTV equipment. Without those details, the commission’s new expert could not consider the issues. The irony is that, had a similar incident taken place on the street in sight of a council-owned CCTV camera, the equivalent information could have been requested under section 17 of the 1995 Act, by virtue of the fact that the footage from a council-owned camera is deemed “publicly held”. Therefore, the information required to properly evaluate the appeal investigation would have been available.
Lawyers here will know that witness credibility often proves to be a vital crux of criminal prosecution or defence cases. To that end, we should consider the case where an applicant was convicted of indecently assaulting three former pupils during his employment as a housemaster at a private residential school. He was sentenced to three years’ imprisonment. For the jury at the trial, the consideration hinged on the credibility of the complainants. The commission requested the files on each of the three complainants in order to address issues raised about their credibility. The private school declined the request and the point remains unresolved, yet a state-maintained school would have been compelled to honour the request for information and the outcome of the review investigation may have been different.
Social work or counselling records are another source of vital information to the commission. Charitable bodies such as ChildLine and the National Society for the Prevention of Cruelty to Children, and private counsellors or doctors, often hold vital information relevant to commission reviews, particularly in cases of intra-family abuse. Such organisations may agree to assist when the consent of the individual concerned is obtained. If consent is not forthcoming, such organisations will generally decline to provide the commission with information, on the basis of confidentiality. However, the discrepancy arises in that local authority social workers’ or NHS records are deemed even without individual consent to be admissible by the commission when it considers a review.
I hope the House can see that the distinction between private and public organisations in cases such as these is artificial. Why should the outcome of justice depend on whether key witnesses went to a public or private school, or whether an alleged crime happened in front of a council-owned or privately owned CCTV camera? This false divide is due partly to a drafting anomaly in the original legislation and partly to unforeseen rises in the amount of important evidence generated and held by private sources.
Members should bear it in mind that examples of situations where the commission has been unable to obtain potentially significant information illustrate only a part of the wider issue. At least as important is the extent to which being granted the power to obtain material from private sector sources would allow it to consider new avenues of inquiry that we currently rarely consider because our powers do not allow us to pursue them.
We are unlikely ever to be sure whether the applicants in the cases to which I have referred were truly guilty or innocent, or whether their appeals would have succeeded had the information been provided—truth is likely to be mixed across the cases. But we can be sure that the current law gives rise to question marks over this point, and that is something it is right to change.
As a final but important justification for why the Bill is necessary, it is worth considering the situation of the Scottish Criminal Cases Review Commission. The power to obtain information from the private sector is contained in section 1941 of the Crime and Punishment (Scotland) Act 1997. The legislation is framed in a very similar way to the English commission’s existing power under section 17 of the 1995 Act, but it entitles the Scottish commission to apply to the High Court in Scotland for an order requiring a private individual or private sector body to produce, or allow access to, material that it is believed might assist the Scottish commission in the exercise of any of its functions.
I hope that I have established how the Bill will improve the work and thoroughness of CCRC investigations and why it is necessary. I shall now attempt to anticipate and answer some questions that the new measure is likely to raise—questions that I have indeed asked myself, and on which I have consulted both the commission and the Ministry of Justice over the past few months. Indeed, some of these points were put to me in Committee.
I want to address up front one of the largest concerns that Members are likely to have with the extension of these powers: their possible intrusion into the lives of private individuals. Although consent and privacy are to be valued, where information, even of a personal and distressing nature, could make the difference between a person’s further incarceration or their freedom, I believe that it is right that that information can be requested, subject to due process and the provision of strict safeguards. Members should know that there are significant safeguards in place to ensure that this new power is not abused.
The Bill provides that there would be judicial oversight of the process. The CCRC could only compel a private individual or organisation to provide material by order of the court. All the same safeguards that currently operate for section 17 disclosures would apply, and the commission agrees that such a process would be appropriate. The main safeguard against improper intrusion is contained in the Bill itself: namely, judicial oversight. As specified in clause 1(1), a person will be obliged to provide the CCRC with private documents or other material only if ordered to do so by a Crown court judge.
In practice, the Crown court judge may make such an order only if they are satisfied that the material may assist the CCRC in its investigation of the alleged miscarriage of justice. Furthermore, unauthorised wider disclosure of any information obtained will be an offence under section 23 of the 1995 Act. In addition, the person from whom disclosure is obtained will be able to stipulate that any information obtained is not to be disseminated further without their consent, in accordance with section 25 of the 1995 Act.
As with its current practice when preserving public body material under section 17, the CCRC would not seek to exercise its functions in an unreasonable or disproportionate way, and it would remain mindful of the right to a private and family life under article 8 of the European convention on human rights when selecting those cases where an application for a court order appeared justified.
Even so, if there are privacy implications, I believe that any interference by the new measures with that right would be legally justified. The material will only be sought pursuant to a review of an alleged miscarriage of justice, which is a serious matter. Therefore, arguments regarding intrusion into private life must be viewed in the context of the human rights implications of continued wrongful imprisonment, which is itself a breach of article 5.
The hon. Member for Caerphilly asked me in Committee what provisions were in the Bill to bring about any sanctions for private bodies or individuals failing to comply with the court order once issued. I undertook to investigate that point and report back to him. In the intervening period I have made inquiries with the Ministry of Justice, the staff at the CCRC itself and also some hon. and learned Friends in the House, and I am pleased to report back to him.
It is true that the Select Committee’s report, which paved the way for this Bill, included an additional recommendation for a new measure for timely compliance, to apply to public and private sources. The Ministry of Justice considered that possibility and how it could be practically applied. It concluded that the evidence that this is needed, or that its implementation would make a significant difference to the timing of reviews by the CCRC, was weak and that it could not consider “sanctions” to be appropriate for the CCRC to apply if bodies failed to comply with the disclosure. Moreover, however, on reflection, the lawyers whom I spoke to and the CCRC considered that there were no such provisions in the Bill because they were unnecessary. That is because the power to demand disclosure is subject to a judge’s agreement, and the existing rules on contempt of court would provide sufficient protection. If a private body refused to provide material to the CCRC after a request for voluntary disclosure, there would clearly be no penalty. However, if the CCRC has sought and obtained a Crown court order under the new provision, then non-disclosure by the private body would be a breach of that court order, and would place the body in contempt of court.
The hon. Member for Caerphilly also raised a foreseeable objection: that of cost. The Bill has no financial implications and will not impose a financial cost or charges directly on the CCRC or private bodies. However, Members may be asking themselves whether the new power could place an unjustified financial burden on private companies that would be obliged to retrieve material for the CCRC. I suggest that the best answer to the question is to look at where the equivalent powers have been in operation for a long time—namely, the Scottish CCRC, which has not reported such issues.
I wish to recap the main reasons why I believe the Bill deserves the support of the House. First, the important power to request privately held information is currently lacking, and that is hampering the work of the CCRC. The limits placed on the CCRC by its governing statute have occasionally hindered its work and limited its ability to help victims who may be innocent. Richard Foster, the chairman of the CCRC, has said he is confident that miscarriages of justice have gone unremedied because the commission lacks that power. It is impossible to tell in retrospect whether the outcomes of any cases would have been different had additional information been available, but I hope I have made it clear how the problem is fixed by the Bill.
Additionally, the power has been wanted for a long time. The CCRC has long complained of this weakness, and after a thorough inquiry the Justice Committee has said that there has been a failure of successive Governments to right the situation. I tell the House that the time has now come. Crucially, we must also remember that the Scottish CCRC has enjoyed the powers for 18 years. Not only would the Bill fix a discrepancy between the two legal systems—as a staunch Unionist, I believe that is surely a good thing—but we already have a working example of how the powers work. There is no record of abuse or invasion of privacy; the Scottish system is largely voluntary and complied with. Given that the commission has the legal recourse should it need it and that information is provided without great cost, only rarely would a court order be contested.
The House will be pleased to know that I have come to my final point. We must consider the human aspect of this debate. Although the British system of justice works well in the vast majority of cases, mistakes occasionally happen. Prisons are not nice places, and they are not supposed to be—that is why we use them as a deterrent. However, what about somebody who has been convicted of a crime and sent to prison when they know that they are innocent, that the system has made errors against them and that the key evidence that could prove their innocence has been withheld? Imagine how their experience is compounded. Those people are victims.
There are countless cases of people wrongly convicted who, owing to psychological pressures resulting from their experience, end up taking their own lives still protesting their innocence and still, sometimes, locked up in prison. We have a moral duty to help those people to ensure that such incidents are minimised and that mistakes are swiftly and thoroughly investigated without hindrance, so that justice can be served. That is the ideal that the Bill will bring us a little closer to realising. I hope that the House will give the Bill its full support.
Christina Rees (Neath) (Lab)
First, may I echo the sentiments that have been expressed about the sad passing of our colleague, my hon. Friend the Member for Sheffield, Brightside and Hillsborough? We came into the House together in the 2015 intake, and he was always so supportive and so positive. He was a man with great dignity. We will miss him dearly, and our thoughts are with his wife and family.
I will keep my comments on the Bill brief, as the hon. Member for Hazel Grove (William Wragg) set out the case for it clearly and in great detail. The Opposition will not oppose the Bill, for the following reasons.
The CCRC performs a vital function in our criminal justice system. That system is crucial to prosecuting criminals, but also to supporting victims efficiently and effectively. However, sometimes, those processes do not work when someone is in fact innocent. The CCRC’s function is to ensure that those innocents can investigate their case and to consider whether there is a real possibility of their conviction not being upheld and of the case being referred to an appeal court.
The Bill will extend section 17 powers to require all persons, corporate and unincorporated, and all natural and legal companies, including partnerships, to provide the CCRC with documents or other material necessary to its investigations. That will put the CCRC in England, Wales and Northern Ireland in the same position as the Scottish CCRC, which has had those powers for 18 years —nearly two decades.
The absence of powers to obtain material from the private sector has often disadvantaged applicants to the CCRC. The powers cover expert witnesses at trials and their personal notes; original contemporaneous notes of interviews recorded by clinicians in NHS files; information received by forensic medical examiners from victims of crime during their examinations; journalists and legal departments of newspapers; banking organisations; companies that have no direct involvement or interest in a case; companies that provide details of employees; private counselling records; third sector organisations such as the Samaritans, the National Society for the Prevention of Cruelty to Children and ChildLine; and campaign groups. They will now all be caught by the section 18A powers.
The overwhelming number of private individuals approached by the CCRC agree to disclose material, but the Bill is for those who do not. They will not be able to hide behind data security legislation or the fact that information has a security classification. The CCRC re-examines and re-tests material from crime scenes, but the Forensic Science Service was abolished by the coalition Government and replaced with a private organisation from 2012. Material was not, therefore, available under section 17, but it will now be available under section 18A powers.
In the past, the CCRC has had good co-operation with its requests for case files from solicitors representing applicants at trial and/or on appeal. In part, that co-operation has been due to the relevant professional codes of conduct. In recent times, as has been said, pressure on legally aided firms has led to the CCRC having difficulties obtaining legal material. Often, such requests are the last priority on solicitors’ work lists, and that has led to protracted negotiations, leading to delays and discussions about who bears the cost of transferring the materials in question. Section 18A will cut those lengthy delays and expedite justice.
The Opposition welcome the safeguards that the Bill will put in place. The CCRC should always attempt to obtain information voluntarily, but if such information were not forthcoming, there would be a court order accompanied by judicial oversight, as specified in clause 1(1). A person will be obliged to provide the CCRC with the relevant information, subject to the order of a Crown court judge.
The Bill will impose no financial costs or charges directly on the CCRC or private bodies. The Scottish CCRC has had only one contested proceedings case in nearly two decades. Will the Minister clarify, however, whether the non-disclosure penalties on private bodies will be the same as they are now for criminal and civil proceedings? In addition, with the CCRC’s funding by grant in aid from the Ministry of Justice in 2014-15 amounting to £5.67 million—a reduction of 30% over the past decade—does he anticipate that the creation of the new powers under proposed section 18A will lead to an increased number of cases, increased workload and therefore the need for increased funding?
As I said, the new power is necessary because not being able to request private information has hindered the CCRC’s working practices. Labour Members will support the Bill, because a person convicted of a crime that they did not commit becomes a victim. In prison, with all the pressure that brings, some victims of miscarriages of justice have taken their own lives. That cannot be allowed to happen again.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
At the outset, may I add my condolences to the family of the hon. Member for Sheffield, Brightside and Hillsborough, and say that we feel his loss in all parts of this Chamber?
I add my congratulations to those of others to my hon. Friend the Member for Hazel Grove (William Wragg), who, in getting the Bill to this stage, has achieved no mean feat. Many private Members’ Bills fall long before they reach this point, and he has shown considerable tenacity, sagacity and modesty in securing its passage to this stage—[Interruption.] But not brevity, he tells me—you can’t have it all. He has done so within nine months of being elected to this House, which is also no mean feat.
I thank the other hon. Members who have demonstrated their support for and interest in this Bill. I note that my hon. Friend has managed to amass an interesting range of sponsors, from the Leader of Her Majesty’s Opposition to the Conservative chair of the 1922 committee. I am not sure whether that is entirely unprecedented, but it is certainly a rare and potent cocktail of parliamentary support, and I congratulate him on that.
In short, the Government support the Bill. It may be modest in size, but we believe it will make a significant contribution to the effective workings of our criminal justice system. When we think about justice, we usually think about the police, the courts, or perhaps the judges. We rightly focus on the victims and the witnesses, and on ensuring that justice is meted out swiftly and surely. Perhaps we do not spend enough time thinking about what happens when things go wrong. That is mercifully rare, but it does happen on occasions that someone is convicted who, it transpires, was innocent all along. My hon. Friend was absolutely right to talk about the impact of miscarriages of justice on individuals—the human toll. He put it incredibly well. British justice should be firm, but it should be fair, and that is what this Bill is all about.
In the 1970s, as my hon. Friend pointed out, there were some very high-profile miscarriages of justice. He spoke about them, and I do not need to repeat what he said. Those cases exposed the weaknesses in the criminal justice system at the time, and that led to the establishment of a royal commission on criminal justice in 1991. As hon. Members will recall, the commission’s remit included considering whether changes were needed in the arrangements for considering and investigating allegations of miscarriages of justice when all the appeal processes have been exhausted. The commission’s recommendations led to the Criminal Appeal Act 1995, which established the Criminal Cases Review Commission.
The existence of the CCRC ensures that those who have been wrongfully convicted have someone to turn to who will thoroughly investigate and reconsider their case. If there is a real possibility that their conviction would not be upheld, the commission will refer their case to an appeal court. The commission consists of 11 commissioners, one of whom serves as chair. They are dedicated and experienced people who deserve our support and encouragement. As I say, its purpose is to investigate cases in which it is alleged that the system has gone wrong and a mistake has been made. That is no easy task for the commissioners. It can involve trawling through reams of paperwork and great swathes of historical evidence. The ability to obtain that evidential material is clearly an essential tool in the commission’s work; I think it is the key to its success.
Currently, the commission uses the powers set out in section 17 of the Criminal Appeal Act 1995 to require public bodies to give it documents or other material that may assist it in discharging its functions. Public bodies that the CCRC often deals with include the police, the NHS, councils, Whitehall Departments and the Crown Prosecution Service. Provided that the section 17 power is exercised reasonably, the CCRC’s ability to obtain information from the public sector is not restricted by any obligation of secrecy or limitation on disclosure. For example, it extends to information that may be relevant to national security and to personal information held by public bodies.
The CCRC does not, however, have the right to obtain the same information from private organisations and individuals. As we have discussed throughout the passage of the Bill, and as my hon. Friend pointed out, that can cause real issues in some cases, albeit a small number. There is no doubt that that has limited the commission’s actions and caused unnecessary delay in some of the reviews of cases it has undertaken. Obviously that is not just unfair but a waste of its resources.
When documents relevant to a particular investigation are held by the private sector, or indeed a private individual, the commission relies on voluntary disclosure. Although voluntary disclosure is not uncommon—most businesses want to try to do the right thing—organisations sometimes claim to be unable to provide the CCRC with the relevant material, perhaps because of a statutory restriction on the disclosure. Even when voluntary disclosure is made, it can often take protracted negotiation, which itself causes lengthy and expensive delays in the review process. As my hon. Friend has said, let us not forget the impact that that has on innocent people, particularly innocent people who are still in prison. The delay has a very real human cost.
The situation under the current legislation stands in contrast to the Scottish Criminal Cases Review Commission, which, when it was established, was granted far wider-reaching powers under the Criminal Procedure (Scotland) Act 1995. The Scottish body has a similar function to that of its counterpart in England and Wales, to investigate miscarriages of justice in Scotland. However, it was established from the outset with powers to obtain material from both public and private sector organisations. It is a shame that there are no Members who represent Scotland present to hear us pay full tribute to the Scottish legal and justice system.
The Bill’s insertion of a new section into the Criminal Appeal Act 1995 is very welcome. It means that the CCRC will be able to obtain a court order requiring a private individual or private organisation to disclose a document in their possession or under their broader control. The court will be able to make such an order only if it thinks that the document or other material may assist the commission in the exercise of its functions. We are not talking about licensing or authorising fishing expeditions.
The involvement of the court is an important safeguard in the process. The individual or the company from which any material is requested will be able to put their case to the court if they think that the information either needs to be maintained for confidentiality or should not be disclosed. There are safeguards for documents that are, for example, commercially sensitive or subject to legal privilege. Clinics may want to safeguard personal medical records whose disclosure could be detrimental to the patient or patients concerned, and journalists want to protect their sources. All such things can be catered for in the process.
In short, there may be a whole range of circumstances where it is justifiable and appropriate that documents or other material remain confidential. The Bill provides a clear process for the courts to consider fully the circumstances of any particular case and to make an informed, sensible decision about how to proceed.
Once a court order has been made, failure to disclose the documents will be punishable by contempt of court. That is a significant sanction. The maximum penalty for that in the Crown court is two years, or a fine, or both. The penalty in any individual case will be a matter for the judges and the court, within the maximum limit. We think that is right and appropriate. Of course, it is not possible to imprison an organisation if it does not comply, but a fine has significant potential to damage a company’s reputation as well as to hit it in the pocket, and we think that will be a considerable deterrent. We also think that the prospect of being taken to court will probably be enough to persuade most companies to provide any relevant documents and material, and to do so quickly. Where a miscarriage of justice is concerned, it is even more important that we brook no delay in putting it right.
One reason why the powers are needed now is that more and more services that used to be in the public sector are provided wholly, or partly, by private companies. It was good to hear that the Opposition have no dogmatic objection to that. A good example of where that works effectively is the work that used to be done by the Forensic Science Service. As hon. Members will imagine, a key part of the commission’s work involves re-examining and re-testing material obtained from crime scenes. Much of that material is now initially tested and held by private companies.
When it comes to forensic evidence and samples, an important power of the commission under the 1995 Act is to request that samples are retained for later examination and testing. At present, such a request can be made to public bodies, but not to private individuals or companies. That is a good example of the situation that the Bill is designed to rectify. Documents that are in the possession of a private company might be destroyed, inadvertently or otherwise, and not be available for later examination by the CCRC. The Bill will ensure that the commission can request that the court orders a private organisation to retain documents or other material, which will reduce any risk that the company might discard or unintentionally destroy important material that the commission might need later.
Some private companies already have a policy covering what they retain, and they may be restrained by lack of space and facilities. The commission needs a mechanism to ensure that documents are retained in spite of any such policy. We think it will continue to be relatively rare for a company to intentionally destroy documents that later prove to be necessary in an investigation by the commission, but it is important that the powers in this Bill exist for future such contingencies.
We should, of course, acknowledge that the great majority of private individuals approached by the commission comply voluntarily. Cases in which organisations or individuals refuse to release documents are, thankfully, rare, but some simply refuse to assist. As with witnesses who are reluctant to come forward, there may be many reasons for that refusal. Some just cannot be bothered, others may be scared of reprisals—for example, where a case involves gangs—and others may be hostile to the criminal justice system in general, or to the commission.
We believe that the powers that the Bill gives the CCRC will make cases of non-assistance much rarer. The backstop of a court order will make it more likely that individuals and organisations will comply fully and without delay when approached by the CCRC. That is certainly the case in Scotland.
As we have considered what the Bill is designed to achieve, we have been mindful of the recommendations made by the Select Committee on Justice following its investigation of the matter during the 2014-15 Session. I will not go through all the points that it made, but the Justice Committee clearly felt that there was a need to act in this area. It argued:
“The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support.”
There appears to be cross-party agreement in the House to that effect. The Committee recommended that the commission should be able to apply to the court, and that important safeguard is in the Bill, so the Bill fulfils that recommendation exactly.
The Secretary of State for Justice wants a justice system that is firm but fair, and which delivers the best possible outcomes and commands the confidence of the public. It is clear from all the speeches, particularly that of my hon. Friend the Member for Hazel Grove, that the Criminal Cases Review Commission has a pivotal role to play in ensuring that the criminal justice system delivers firm but fair justice. I think the whole House agrees about the importance of the commission’s role in performing independent investigations, and that, as it does so, it should have all the information-gathering powers it needs. The Bill is an important, though modest and incremental, addition to those powers.
For all those reasons, the Government are very supportive of the Bill. The powers are appropriate, and the Bill’s terms will ensure that the powers are exercised proportionately and appropriately. The involvement of the courts will ensure that we get the right balance between confidentiality and the broader requirements of due process and justice. I think I will be joined by many colleagues—indeed, I hope by the whole House—in welcoming and supporting the Bill, commending my hon. Friend and wishing the Bill a safe, secure and swift passage in this House and through the other place.
Question put and agreed to.
Bill accordingly read the Third time and passed.