Information Disclosure: Pre-trial Abuse of Process Hearings

(Limited Text - Ministerial Extracts only)

Wednesday 22nd May 2019 Westminster Hall

[The Solicitor General (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Robertson.

I thank my right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan) for raising these important issues. I acknowledge the hurt and anger of her constituent, and how he feels as a result of what happened to him at school many years ago. Sexual abuse of children by those in positions of authority or power who abuse their position of trust is a devastating crime.

I cannot imagine what Mr Perry has been through, but I commend him—as my right hon. Friend has done —for his courage in continuing to speak out about his experiences so as to contribute to the debate on how we improve the criminal justice system for victims. I also understand what she says about her relationship with him, and I am pleased that he has been able to contribute to improvements and to the future of those who have suffered as he has. I am pleased that we have the opportunity today to discuss the concerns expressed by my right hon. Friend about disclosure of information in pre-trial abuse of process hearings.

My right hon. Friend the Member for Chesham and Amersham spoke about the broader issues in relation to disclosure. Like her, we are concerned about the broad issue. It is imperative that disclosure in a case is made properly. She correctly identified the fact that last year the Attorney General published a review of disclosure, and will be publishing further guidelines in due course.

My right hon. Friend referred in some detail to the case of her constituent, Mr Perry. As she knows, it is not appropriate for me as Solicitor General to comment on decisions made by members of the independent judiciary in the two prosecutions of Peter Wright. I understand, however, that the allegations made about the conduct of those representing Peter Wright during the original criminal proceedings in 2003 have been considered by the police, as she said, the Bar Standards Board and the Solicitors Regulation Authority. Those are the correct bodies to look at allegations of that nature.

Furthermore, in 2012, one of my predecessors as Solicitor General personally considered whether to bring contempt proceedings arising from what the judge was told in 2003, but he concluded that there was insufficient evidence to do so. I understand that the trial judge in the proceedings that led to Peter Wright’s conviction in 2013, as my right hon. Friend said, also considered the arguments that had been employed in the abuse of process application in 2003 but declined to lift the stay on proceedings.

I am not aware of any adverse findings made against any lawyers involved in the criminal proceedings arising out of the abuse at Caldicott School between 1959 and 1970. None of that is in any way designed to diminish the profound effect that those crimes must have had on Mr Perry’s life, or to detract from our commitment as Law Officers superintending the prosecuting departments to promote best practice in the care that victims of sexual abuse receive from the criminal justice system. However, the issues that Mr Perry continues to raise have not been ignored and have received serious consideration in the past.

As Members know, it is open to a defendant to argue that a prosecution is an abuse of process—for example, because of the effect of delay on the fairness of the trial—and that proceedings should therefore be stayed. That arises from the overriding duty on courts to promote justice and to prevent injustice. In these cases, the burden lies on the defendant to prove on the balance of probabilities that there has been an abuse and that a fair trial is no longer possible.

There is clear authority from the Court of Appeal that there is a strong public interest in the prosecution of crime, and that ordering a stay of proceedings is a remedy of last resort, even where there has been significant delay in bringing proceedings. As the hon. Member for Strangford (Jim Shannon) pointed out, the bar for a stay is very high. Even when a judge imposes a stay of proceedings, the prosecution can apply to lift the stay in future. As my right hon. Friend the Member for Chesham and Amersham mentioned, such an application was made in Mr Perry’s case in 2012. Although the judge declined the prosecution application to lift the stay on the 2003 proceedings, she allowed the fresh allegations against Peter Wright to be tried by a jury, and also allowed details of the abuse that Mr Perry suffered to be admitted as bad character evidence during the trial. As a result, the jury found Peter Wright guilty of abusing five pupils during the 1960s and he was sentenced to eight years’ imprisonment.

My right hon. Friend makes some important observations about disclosure in the criminal justice system. Hon. Members will be aware that the Attorney General recently carried out a review of disclosure and made recommendations to improve performance across the criminal justice system. In our criminal justice system there is a statutory duty on prosecutors to disclose to the defence any material or information that may assist the defence or undermine the prosecution case. That duty applies to abuse of process hearings as well as trials. There is also a residual duty on the prosecution at common law to disclose any information that would assist the accused in the preparation of the defence case. That duty applies from the outset in criminal proceedings and requires the disclosure of material that might enable an accused to make an early application to stay the proceedings as an abuse of process.

[Alex Chalk]

The Minister is quite properly setting out the duties on the prosecution entirely accurately and fairly. Does she agree that there is a duty, however, on all parties to ensure that what they submit does not in any way mislead the court, and that applies to the defence just as it does to the Crown?

[The Solicitor General]

My hon. Friend makes an important point that I will come on to. It is absolutely right that counsel or solicitor must not mislead the court, as officers of the court with a primary duty to the court and not to their client, but the disclosure of evidence is a different obligation on the defence. There is no corresponding legal duty on the defence to disclose information that is harmful to its case, because that is consistent with the fundamental principle that it is for the prosecution to prove its case and not for a defendant to prove their innocence.

As my right hon. Friend the Member for Chesham and Amersham rightly identified, there is an important duty on counsel and barristers; they have a professional code of conduct that includes the requirement to act ethically and with integrity at all times. That includes a prohibition on knowingly or recklessly misleading anyone, including a court, and a positive duty to behave in a way that maintains public trust and confidence in the proper administration of justice. My right hon. Friend mentioned that her constituent may have details of other cases where a court has been misled; I strongly encourage her to share those details with the CPS and the professional bodies responsible for barristers and solicitors.

[Dame Cheryl Gillan]

I am grateful to the Minister for the way in which she is responding. She mentioned that it is important to maintain trust in the regulatory bodies. In the light of the circumstances of this case, does she agreed that trust has been shaken? I will provide her with those details once my constituent provides them, so she may pass them on to the relevant authorities or look at them herself, because it is from her office that I believe my constituent wishes to have a response.

[The Solicitor General]

I appreciate that my right hon. Friend’s constituent feels that trust in the criminal justice system has been shaken. That is of concern. I reiterate that as far as I am aware no misconduct has been found by the Bar Standards Board in relation to the case, but I would be very happy—as I am sure it would—to receive any further information that she can provide.

I would like to underline the additional safeguards that exist for defendants and victims when a stay application is brought. There are a number of rules and regulations that ensure that the hearing should be conducted with due notice and in the interests of justice. The Criminal Procedure Rules 2015 set out clearly the timetable that the defence and prosecution should adhere to when preparing for the hearing. For example, the defence application must be in writing and provided to the prosecution and court as soon as practicable after becoming aware of the grounds for applying. The application must include or identify all supporting material, specify all relevant events and identify any witnesses the defendant wishes to call in support of the application. The prosecution must do likewise within 14 days of receiving the application. Both parties must serve skeleton arguments on each other and the court in advance of the actual hearing, so that everyone knows the issues to be determined at the hearing.

Victim care is important in cases of sexual abuse. Mr Perry’s experience demonstrates why it is so important that we continue to make victim care a priority in our criminal justice system.

[Dame Cheryl Gillan]

I agree with the Minister that victims should have priority in our criminal justice system—that is most important. She mentioned at the beginning of her response that she is working on new guidelines that will come out shortly. Could she give us a greater indication of when we can expect those new guidelines? Would there be any possibility of looking at the draft guidelines before they are finalised and published?

[The Solicitor General]

A review of disclosure has already taken place. Further guidance will come out in due course. I am happy to update my right hon. Friend on any further details on that and will take on board any points that she might like to make.

We are not just focusing on disclosure, although that is very important. The CPS has almost doubled the number of specialist prosecutors in its dedicated rape and serious sexual offence units, and is working with the Ministry of Justice and the Home Office to revise the victims code, to improve the support and care offered to victims. It is important to remember that these issues do not just affect the Attorney General’s office but are cross-departmental, and we are working together with Departments on those. Debates on this area make an important contribution to the ongoing work to improve the experience of victims in the criminal justice system. I thank my right hon. Friend the Member for Chesham and Amersham and her constituent for raising important issues that affect our criminal justice system.

Question put and agreed to.