Criminal Cases Review Commission (Information) Bill
(8 years, 9 months ago)
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Lord Ramsbotham (CB)
My Lords, it is a very real pleasure and privilege to be asked to introduce this Private Member’s Bill, which was so admirably introduced in and taken through the other place by William Wragg, MP for Hazel Grove. I thank him and his staff for their careful briefing, before passing on responsibility for its passage through this House to me. I also thank the Chief Whip and his staff in the Government Whips’ Office for their early tabling of the Bill, which I know enjoys strong government support. Finally, I thank the chairman of the Criminal Cases Review Commission, Richard Foster, and his staff for the trouble they have taken to brief me on the Bill.
The purpose of this Bill is to correct an anomaly in the drafting of the Criminal Appeal Act 1995, by which the Criminal Cases Review Commission was created. The task of the commission, an independent public body sponsored and funded by the Ministry of Justice, is to investigate possible miscarriages of justice, following the 1993 report by a royal commission into the circumstances of the mishandling of the cases of the Guildford Four and the Birmingham Six. The commission investigates convictions on application by an offender or, if an offender has died, at the request of relatives. All applications are free. The commission’s remit covers only England, Wales and Northern Ireland, as do the provisions of the Bill.
If the CCRC concludes that there is a real possibility that the Court of Appeal will overturn a conviction, it can make a referral and send cases back so that an appeal can be heard. Sentences cannot be increased as a result of a defendant’s application for review. The commission, whose annual budget is £5.5 million, receives between 1,000 and 1,500 applications a year, of which, in 2015, only 39 were referred back for review. This very low ratio of referrals to convictions indicates how uncommon it is for a sufficient weight of relevant, accurate and compelling new evidence to be put forward to justify an overturn. I put it to the House that it should be taken as an indication of the rigour and fairness of our justice system. It is, however, essential that whenever mistakes are made, they be redressed as quickly as possible. That is why it is so important that any barriers in the way of the public body responsible for investigating these mistakes be removed.
Under Section 17 of the Criminal Appeal Act, the CCRC has the power to obtain any relevant information held in the public sector—an essential weapon in its investigatory armoury. Provided that the power is used reasonably, it is not restricted for any obligation of secrecy or other limitation on disclosure, and includes information relevant to national security and personal information held by the police, prisons, the NHS and the Department for Work and Pensions. It can also request CCTV information from local authorities.
However, thanks to the drafting anomaly which I mentioned earlier, the CCRC does not have the same power in respect of material held outside the public sector, and has to rely on co-operation and favourable responses to requests for voluntary disclosure of relevant material from individuals and organisations. Although voluntary disclosure is not uncommon, an increasing number of organisations are citing a number of reasons why they cannot assist, including recent trends in statutory data protection. Furthermore, voluntary disclosure often only follows protracted negotiations, which cause lengthy and expensive delays in the case review process. The CCRC cites four situations in particular in relation to the private sector which tend to disadvantage an applicant: inability to obtain information from a private individual; inability to obtain information from a private sector organisation; provision of partial information or a summary, which the commission is in no position to scrutinise or verify; and lengthy delays in the case review process caused by protracted negotiations within the private sector. What is particularly unfortunate is that the CCRC has experienced significant or repeated difficulties with some organisations or types of organisation, which has forced it to accept that further pursuit of information from them would be fruitless. This situation could have resulted in its inability to remedy a number of miscarriages of justice.
This problem has become much more acute in recent years because responsibility for much of the required material held by public bodies when the 1995 Act was enacted has now been passed to private sector bodies. Such organisations include some prisons; probation services, the majority of which are now contracted out; forensic science services, following the abolition of the official Forensic Science Service; private health clinics; and charities, including those treating substance misuse. Other private sector bodies from which material is sought include law firms, expert witnesses, campaign groups, news agencies, banks, private schools, public transport companies and shops and department stores.
The distinction between private bodies, from which the CCRC does not currently have statutory powers to compel disclosure, and those in the public sector, from which it does, is arbitrary because it could be a matter of luck or personal circumstance as to which one holds the relevant information in a case. For example, medical records that are statutorily available if an alleged victim is treated in an NHS hospital are not available if they are treated in a private clinic. Similarly, the CCRC can demand external CCTV footage from a public sector jobcentre on one side of the street but not from a shop on the other, possibly denying it important evidence. I could give many other examples but the point is that this arbitrary, random and unintended distinction should not be allowed to impede the justice system.
It is even more regrettable that a CCRC inquiry into a miscarriage of justice should be impeded by the refusal of a private organisation or witness to provide material, and the inability of the CCRC to compel disclosure of all relevant information can result in a flawed decision for and against an applicant. The victim of a miscarriage of justice could be made to suffer continued imprisonment and the social consequences of a criminal conviction. Conversely, the absence of all relevant information which could have persuaded the CCRC to turn down a case could result in an expensive referral to the Court of Appeal. In either case, unnecessary distress is caused to the victims of the crime in question.
The CCRC has long recognised that the ability to conduct case reviews is detrimentally affected by its lack of afforded legal power to obtain material held in the private sector, recognition of which was officially supported by the 2013-14 CCRC triennial review. There is already a precedent within the United Kingdom because the power the Bill seeks to give the CCRC was granted from the outset to the Scottish Criminal Cases Review Commission under Section 194I of the Criminal Procedure (Scotland) Act 1995. Under this legislation, the SCCRC is entitled to apply for a court order requiring a private individual or organisation to provide relevant material. In practice, the SCCRC finds that a reminder that it has the statutory powers to apply for a court order is usually sufficient to secure voluntary disclosure. Indeed, only one case in 15 years has led to contested court proceedings.
The granting of similar powers subject to similar legal safeguards was recommended by the Justice Committee in another place under the distinguished chairmanship of the noble Lord, Lord Beith, whom I am delighted to see in his place. Its Twelfth Report of Session 2014-15, published on 25 March 2015, included the following:
“The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support. 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”.
This is that new criminal justice Bill.
To help the House, I will explain briefly how the proposed new power would work in practice. If passed, the Bill would be inserted into the Criminal Appeal Act 1995 as a new Section 18A, enabling the CCRC to obtain a court order requiring a private organisation or individual to disclose a document or other material in their possession or control. As with the current power over public bodies, disclosure requirements will apply notwithstanding any obligations of secrecy or other limitations on disclosure, including statutory obligations or limitations. This means that organisations will not be able to claim exemption because of the Data Protection Act or security classification. The new section will also apply to cases arising from courts martial, which the CCRC has been involved in investigating since the Armed Forces Act 2006.
The CCRC intends that even after the Bill is enacted, it will always attempt to obtain information voluntarily before reverting to a court order. This will result in better relations with the private organisation or individual concerned, and is likely to be quicker than a court application. Except in very specific circumstances where a problem in the criminal justice system requires a proactive trawl for information, the CCRC is a reactive body, responding to applications and not going out to seek custom. It estimates that it may need to request private body material on about 70 occasions a year, of which only 10 are anticipated to require an application for a court order. Those who refuse to respond, including journalists, will have to recognise that such action will amount to contempt of court, not contempt of the CCRC.
Although the British criminal justice system works well for the vast majority of cases, mistakes do occasionally happen. Prisons are not nice places, nor are they supposed to be, but a civilised society, which we contend to be, should ensure that there are adequate safeguards to prevent people being sent there who know that they are innocent or that the system has made errors against them. The chairman of the CCRC has admitted that miscarriages of justice have gone unremedied because of the lack of the power to obtain information from both public and private sources. We have a duty to ensure that this situation is eliminated so that when mistakes are made, they can be investigated swiftly and thoroughly without hindrance. That is what the Bill seeks to achieve and I beg to move.
Lord Beith (LD)
My Lords, what a privilege it is to follow the noble Lord, Lord Ramsbotham, and to see a change that the committee I chaired recommended only a year ago being implemented. We are grateful to have his authority in taking the Bill through this House. I record also my appreciation of Mr William Wragg MP for taking the Bill through all its stages in the House of Commons, and I thank Ministers for the support they have given the Bill. February has been rather a good month for the committee I used to chair, with the Supreme Court successfully addressing joint enterprise—another of the issues we brought forward—and redefining the law very helpfully.
The chairman of the Criminal Cases Review Commission, Richard Foster, said in evidence to the Justice Committee that,
“you can be confident that there are miscarriages of justice that have gone unremedied because of the lack of that power”;
namely, the power to compel the disclosure of material from private organisations. That was a pretty serious statement. The Criminal Cases Review Commission exists to remedy miscarriages of justice. We know they occur and we know how wrong it is that someone should serve a long term of imprisonment or have hanging over them a strong sentence for the rest of their lives for something they did not do.
Of course, the problem has become more acute, as the noble Lord, Lord Ramsbotham, pointed out, because a number of services that used to be in the public sector are now provided by the private sector or the non-governmental sector, such as the forensic science service and significant numbers of probation and prison services. Interestingly, in evidence to us the CCRC cited the fact that there was a large charity, mainly publicly funded, from which it had proved extremely difficult to obtain material that the commission believed it needed to deal with a case. Then there is a wider range of private sector organisations—transport companies, commercial suppliers, CCTV operators—which may have material that is necessary to establish whether a case should go to the Court of Appeal. These bodies can all be and are approached on a voluntary basis and in most cases co-operation is secured on a voluntary basis, but without some ultimate sanction we will continue to have a very serious problem.
The kind of material that the commission seeks can be crucial in surmounting the “real possibility” test. One reason the Justice Committee reviewed the work of the CCRC was that there was a deal of frustration about cases which do not get past the CCRC—people who believe they are innocent—but the CCRC does not take to the Court of Appeal cases which it does not believe the Court of Appeal will consider justified to bring forward, such as cases in which there is no new evidence. The “real possibility” test is applied. The new evidence may be in the form of material which can be verified only if the kind of information referred to already is obtained from private organisations.
That being the case, and it being an anomaly, we may wonder why it has taken so long to put it right. The usual argument was about the lack of a legislative vehicle, which I found particularly unpersuasive when we have had about two criminal justice Bills every year for as long as I can remember. The chairman of the commission said of that phrase that it,
“is something that well-meaning officials have been telling us since 2006”.
I am glad to say that wiser counsels have now prevailed. The Government have given assistance to the Bill and support for it is widespread.
There are some questions on which I hope the Minister can help us when he contributes to this debate. One that has been put to me is: are there sufficient safeguards for information to be protected when there is another principle at stake, such as legal privilege, medical information which would be damaging to the patient without materially assisting the appeal case, or journalists’ sources? That issue was raised with my noble friend Lord Lester of Herne Hill, who cannot be here this morning. He passed on to me a letter from the News Media Association, which wrote to one of the Justice Ministers, Dominic Raab, on 16 February about this. At Third Reading in the Commons, Mr Raab said there are “safeguards”; I presume that he was relying on the fact that a Crown Court judge, upon whose authority the disclosure is to take place, would certainly have in mind proportionality, necessity and a long-established understanding of the importance of confidentiality in some of the spheres that I have mentioned.
A further point is that where disclosure to the CCRC is found to be necessary, we also rely on the commission’s care in the handling of documents. Its record in that respect is very good. In evidence, the commission told us that security and intelligence organisations, which have every reason to safeguard confidentiality, co-operated with the commission because they felt safe that its document-handling procedures were good enough.
I should add that some recommendations which the Justice Committee made do not feature in the Bill. One was a provision for timely compliance in the public sector, where there is quite a lot of variation. Requests made to the courts have 92% compliance with the timetable but in local authorities it was only 67%, according to the evidence that they gave us. The Government wanted to see more evidence from the CCRC before they would be convinced that this provision was needed. The ball is therefore in the CCRC’s court to demonstrate whether it has been able to secure an improvement in that sector or whether, at some future point, we need to give attention to that.
Secondly, the Government agreed with our recommendation that the CCRC should develop a system of feedback so that all parts of the criminal justice system get a better understanding of how and why miscarriages of justice take place. The Government offered to assist and facilitate this process, which is obviously sensible. After every major miscarriage of justice case we all say, “This really mustn’t happen again—we must look at the kind of factors that led to it happening”. Indeed, the setting up of the CCRC followed just such a reaction. Does the Minister think that progress in getting feedback is happening? I hope that he will encourage it. It does not need to be in the Bill but it is important.
The third thing that the committee recommended was that the CCRC should have a significant addition to its resources. Of course, we made that recommendation when securing more resources for any public body was particularly difficult. The CCRC has had to live without any significant uplift to its resources but, in the context of the Bill, one has to ask: given that some more cases will probably be pursued because access is obtained to disclose material, will the commission have the resources to enable it to do that?
Although there were other recommendations, as I have mentioned, the recommendation which the committee believed was so urgent and overdue that no criminal justice Bill should pass through Parliament without its inclusion was the one which this Bill addresses. We now have the opportunity to put that matter right.
Lord Black of Brentwood (Con)
My Lords, I strongly support the Bill, which was so effectively and comprehensively introduced by the noble Lord, Lord Ramsbotham. Any miscarriage of justice is a travesty in human terms and in its impact on the reputation of justice, and it is right that we have the most effective measures in place to assist those seeking to redress wrongs. I have only one point to make. It relates to the protection of journalists’ sources, which the noble Lord, Lord Beith, mentioned just now. I must declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.
The proposed extension of the commission’s power to obtain documents is understandably very broad. The reasons for that have been set out absolutely cogently, but we in this House should always be wary of such sweeping changes by scrutinising them properly and ensuring that they do not cause mischief later on. In doing so we should consider whether, in a small number of sensitive areas, such a power should be subject to some clear safeguards. One of the most obvious, as the noble Lord, Lord Beith, said, is access to journalists’ sources of information, given that the Bill—as was made clear in another place—extends to news agencies and,
“journalists and legal departments of newspapers”.—[Official Report, Commons, 5/2/16; Col. 1243.]
In this House, I do not need to dwell on the importance of the protection of sources, which is a vital component of press freedom and indeed of the proper functioning of democracy. But given that the Bill gives the CCRC a right to access sources and therefore potentially undermines that, we should be careful to legislate in a way which minimises the possible damage. Sources are of course already under assault, not least from the misuse of the Regulation of Investigatory Powers Act. The same issues are being robustly debated in the context of the new draft RIP Bill that is before Parliament. We should not do anything that adds to those burdens. This is especially true in the case of the CCRC because, paradoxically, the investigative journalism which has uncovered many miscarriages of justice can be so easily undermined where the confidentiality of sources is called into question. New evidence which could be of real help to the commission in its vital work could be less likely to come forward if people, including whistleblowers, know that their identity might be revealed.
I should make it clear that I am not proposing in any way that journalists and media organisations should somehow be exempt from the Bill. If it is to apply to every private individual and private organisation, reporters and publishers cannot and should not be excluded from that. But we need to see some safeguards which go rather further than the slightly inchoate ones that the Minister in another place put forward. There should be clear requirements on the face of the Bill that orders for the production of material made against private individuals and private organisations where the right to freedom of expression is engaged—and other fundamental rights may fall into that category—should be subject, at the very least, to the same safeguards required under the Police and Criminal Evidence Act procedures for journalistic material. That means that, before any order can be made, the court must consider: whether the material is of substantial value to the matter under investigation; that it is impossible to obtain it by other means; that the specific disclosure would be in the public interest in the context of the investigation; and the circumstances under which it is then held by the person in possession of it. In those circumstances, the media should also have prior notice of the application for the disclosure order and the right to make representations to the court.
Such a measure would ensure that the CCRC was still able to do its job more effectively in the way that the noble Lord, Lord Ramsbotham, set out, and as this important Bill envisages. It would also ensure that the vital issue of the protection of sources, and therefore the importance of press freedom, is always taken into account before any potentially damaging decision is made. In my view, it is simply a question of balance. Are the noble Lord, Lord Ramsbotham, and my noble friend the Minister prepared to look at such issues during Committee to ensure that we do not do anything that undermines robust, investigative reporting in the public interest?
Lord Trefgarne (Con)
My Lords, I have no particular views as to the merits of the Bill itself, although it sounds admirable to me, and I hope and believe that it will soon reach the statute book, which would be a good thing. However, I would just ask my noble friend whether he has any news about the case of Sergeant Blackman, which is currently before the Criminal Cases Review Commission but seems to have been stuck there for some time. Sergeant Blackman was a Royal Marine serving in Afghanistan who was charged and convicted of certain offences relating to his service in that place. His case, as I say, has gone before the Criminal Cases Review Commission—rightly so, in my view—but appears to have got stuck. Does my noble friend have any news on that particular matter?
Lord Falconer of Thoroton (Lab)
My Lords, like everybody else who has spoken in this debate, we on this side of the House warmly welcome the Bill and will give it every support. We hope it gets on to the statute book as quickly as possible. I pay tribute to the noble Lord, Lord Ramsbotham, both for his support of the Bill and for the clarity with which he explained it to us. I also pay tribute to Mr Wragg in the other place, who promoted it through all its stages and to the noble Lord, Lord Beith, who drew attention to it when he was the chair of the Justice Select Committee in the other place—all bearing fruit very quickly. I also pay tribute to the Government, who have unreservedly supported it throughout.
On one view, the Bill is quite a small change, but it is a quite important change. Mr Selous in another place identified a number of examples where it would be important: first, where the issue was whether a complainant in a sexual assault case had been paid by a media organisation; secondly, where a bank could give evidence in relation to payment; thirdly, where a shipping company could give evidence about when material came into the country in the context of a drug importation case; and, finally, in relation to the forensic service, which has been privatised, where the notes that experts make could be relevant to correcting miscarriages of justice. Those are powerful examples of where this will make a difference.
I support the Bill and support the width of the power that would be given to the courts. However, I also strongly support what the noble Lords, Lord Beith and Lord Black, said about the need for safeguards. The width of the power in the Bill would go beyond powers in other areas, and the two big examples are in relation to legal professional privilege and journalistic sources.
It is not possible to override legal professional privilege in the ordinary investigation of crime, but under this power it would be. As the noble Lord, Lord Ramsbotham, said, the power already exists in Scotland. There is no evidence that it causes a problem in Scotland, although I note that the noble Lord said, I think, that there has only been one application under it in Scotland. We need to address in Committee whether there need to be safeguards in the Bill, in particular that the judge, in considering whether to make an order, should have specific regard to the extent that legal professional privilege should be placed in the balance—not because a judge would not do that but because by putting it in the Bill the judge would have to especially think about and refer to it, and be aware that there would need to be a reason if he or she was going to override legal professional privilege. The justification for the power being so wide is that, where somebody is in prison and may be wrongly convicted, exceptional powers may be required.
The second area where we may need to look at putting something in the Bill is in relation to journalistic sources, which the noble Lord, Lord Black, referred to. The courts very recently, in R (David Miranda) v Secretary of State for the Home Department, said that in order to protect people’s rights to freedom of expression, the freedom of the press and the provisions under Article 10 of the European Convention on Human Rights, there needs to be a power that journalistic sources should only be required to be handed over to the state where there is a prior judicial process that can balance the interests of justice—for example, whether a miscarriage of justice has been caused—against the possible “chilling effect” of making an order for the disclosure of journalistic material. The argument was that, if a court can override protections of confidentiality —the Miranda case goes beyond sources—that would have a chilling effect on journalism. Interestingly, in this particularly area, it is journalistic activity that very often is the beginning of the process by which miscarriages of justice are identified.
The noble Lord, Lord Black, referred, in my view correctly, to the special provisions of Section 9 of the Police and Criminal Evidence Act, which specify that an order which may involve the disclosure of journalistic sources can only be made after an inter partes hearing before a Crown Court judge. As I understand it, an order under the new Section 18A of the Criminal Appeal Act 1995 proposed in this Bill can only be made by a Crown Court judge—so the first bit is satisfied—but there is no express provision in relation to the need for an inter partes hearing, as there is under Section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act. I may be wrong in saying that is the best way to deal with this, but again there needs to be some provision in the Bill to deal with it. I do not believe for one moment that there will be dissent around the House as to how we do it or that it will delay the Bill, but it is important that that matter be dealt with.
I will say only in passing that in the incredibly helpful notes on the Bill prepared by the Ministry of Justice, which are in every single respect excellent, paragraph 15 on compatibility with the European Convention on Human Rights says:
“As this is a Private Member’s Bill, no statement under section 19 of the Human Rights Act 1998 is required. Nevertheless, the Government considers the provisions of the Bill to be compatible with the Convention rights, including the right to respect for private life under Article 8, the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 and the right to a fair trial under Article 6”.
However, there is no reference to Article 10, which was specifically referred to in the Miranda case. I am absolutely sure that this was not because the department did not consider it, but it would be worth while to hear what its views are in relation to that.
I conclude by strongly commending the Bill to the House. It will have the support of the Labour Party in its passage.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I add my congratulations to those of others who have applauded the noble Lord, Lord Ramsbotham, for bringing the Bill forward and for his very lucid exposition of the reasons behind it and the history of legislation which gives rise to the need for this significant change. He has made my task much easier, and I hope I will not repeat too much of what he has so helpfully said about the circumstances in which we in this House consider the Bill.
The Bill inserts a new section into the Criminal Appeal Act 1995, which will mean that the Criminal Cases Review Commission will be able to obtain a court order requiring a private individual or a private organisation to disclose a document or other material in their possession. The court will only be able to make an order if it thinks the document or other material may assist the commission in the exercise of its functions—that of course is, of itself, a restriction which courts will bear very much in mind.
Once the court order has been made, as has been indicated, failure to disclose the documents will be punishable as contempt of court. The Government feel that it is likely that these powers will be needed rarely. I note what the noble Lord, Lord Ramsbotham, said about how rarely this power has been used in Scotland, where it has existed for some time, and how relatively rarely it is anticipated it will be needed in future in this country. Of course it has rightly been pointed out that the existence of the power itself will very much act as an encouragement and an incentive for private bodies to provide the information without a court order. Nevertheless, there will be circumstances in which organisations may feel it necessary for their position to be covered by a court order, notwithstanding that they do not oppose it. They will then not be vulnerable to any criticism or legal action. So there will be occasions on which this happens.
Examples have helpfully been given of particular bodies which may be required by the provisions to give up material. Reference was made to the Forensic Science Service, an example of the increasing privatisation of certain public bodies. A key part of the commission’s work involves re-examination and retesting of material obtained at crime scenes. Much of that material is initially tested and held by private companies.
The restriction of what the Criminal Cases Review Commission can do was rightly emphasised. It will refer matters to the Court of Appeal only where there is a real possibility that a conviction will not be upheld. Several noble Lords made the point that it is a tribute to our justice system that those occasions are relatively rare, but of course the commission performs a crucial function—often, as was pointed out, assisted by journalists carrying out investigative processes. It is something of an irony, to which I shall come in a moment, that those very journalists will be anxious to protect their sources if any order is made asking them to, as it were, disgorge material which they hold.
The Justice Select Committee investigated the work of the Criminal Cases Review Commission, and we are very fortunate to have its former chairman, in the shape of the noble Lord, Lord Beith, with us. As he rightly said, he has had a profitable few weeks in terms of responses to various recommendations of his Committee. He asked me why we were not implementing one of the recommendations: to give the CCRC powers to sanction public bodies—rather than private ones—that do not provide information. We recognise the burden that delay and non-compliance places on the CCRC; we are considering whether any further steps can be taken to improve the situation.
The noble Lord also asked about his committee’s recommendation to give the CCRC more money. As he acknowledged, there is a shortage of money generally. The CCRC is managed within the same spending review process as the rest of the Ministry of Justice. It is right to applaud the performance of the CCRC. For example, it closed 947 cases in 2010-11, a figure which rose to 1,632 in 2014-15 without an increase in resources. I congratulate the CCRC on its work. Of course, it is very difficult to generalise about how much work will be involved in a particular investigation.
However, the committee’s main recommendation has been well and truly taken forward by this Private Member’s Bill. An anxiety was expressed by several noble Lords—quite correctly—about questions of confidentiality. Of course, the individual or private company from whom material is requested will be able to put their case to the court if they believe that the documents or other material need to remain confidential and should not be disclosed. That, of itself, is a safeguard.
The question of legal professional privilege was raised. This matter was helpfully referred to by the report of the Constitution Committee of your Lordships’ House. It considered the application of the Human Rights Act, among other things, to the difficult process that judges will have to undertake in this context—as they do in many others—of weighing up the potential conflict between different rights under the Act. The noble and learned Lord, Lord Falconer, referred to the fact that the Ministry of Justice note did not specifically refer to Article 10. Of course, as a public body, the court would be obliged in any event to take into account all the articles of the convention incorporated into the Human Rights Act, so the fact that it was not expressly considered would in no way prevent someone raising the point if the matter were ventilated in a court hearing.
I entirely accept what my noble friend Lord Black said about the importance of preserving journalists’ sources. The Government and, I am sure, the noble Lord, Lord Ramsbotham, will have that well in mind, and so should a court. Of course, the restrictions on the way that documents or material are disclosed should safeguard those sources adequately. The CCRC itself has heavy obligations in its duty towards such material. So far, it has an absolutely unblemished record in this regard, so I hope that provides some consolation. It is a matter that a court should have very much in mind.
The noble and learned Lord, Lord Falconer, made the point that, in general terms, legal and professional privilege is inviolate. In fact, of course, it is subject to exceptions in any event, referred to, helpfully, in the Constitution Committee’s report on the so-called iniquity principle. It states at paragraph 8 that,
“consultations or communications between a lawyer and his client that are in furtherance of crime or fraud are not protected by”,
legal professional privilege. So it is a rule subject in any event to exceptions, but it is an important rule, and I am sure the courts will be slow to override it unless the circumstances justify doing so. Of course, both journalists and lawyers will know that the possibility of a material injustice being allowed to continue will be a heavy matter to weigh in the balance when deciding whether it is appropriate to make such an order.
The Bill will extend to England, Wales and Northern Ireland. Scotland, as has been said, has a separate Criminal Cases Review Commission, which I think it is fair to say has been a success. The Bill will put in place similar arrangements for England, Wales and Northern Ireland. We feel that it will make an important contribution to ensuring that the justice system meets public expectations, and we welcome it.
I should not conclude before referring to the point raised by my noble friend Lord Trefgarne about Sergeant Blackman, which he has helpfully raised on his behalf in your Lordships’ House on a number of occasions. Of course, the CCRC is an independent body, and it is not appropriate for the Government to interfere in what it does. However, I undertake on the Government’s behalf to ask it whether there are any developments in that regard. It will certainly read this debate and will have well in mind the anxiety on the part of Sergeant Blackman’s family that it investigate this matter as expeditiously as possible—as is consistent with fairness to both Sergeant Blackman and the bodies responsible for bringing him to court.
The Government welcome the Bill. We feel that it will very much improve a matter which needs improvement.
Lord Ramsbotham
My Lords, I thank the Minister for his typically helpful and comprehensive response. I also thank all those who have spoken in support of the Bill. In particular, I commend the remarks of the noble Lord, Lord Beith. The excellent report produced by the Justice Committee under his chairmanship has been a notable landmark in helping to move things forward. I am very glad that he mentioned the various other aspects, which are really between the committee and the Government rather than for the Bill. There are other things to do with the CCRC that one is anxious to move forward to make it as efficient as possible.
I am also most grateful to the noble Lord, Lord Black of Brentwood, for raising the question of journalists, which, as the noble Lord, Lord Beith, said, was mentioned by the NMA. It is appropriate for us to consider that in Committee, and I hope that an amendment will be tabled to enable us to do so. I am also most grateful to the noble and learned Lord, Lord Falconer, first, for his support and, secondly, for drawing our attention to the question of legal privilege, which, again, I hope will be explored properly in Committee.
The impression I get from the CCRC is that it feels that the Bill would enable it to do its job better. That is surely the purpose of getting this thing through as quickly as possible—to enable it to do its job. I look forward to Committee.