Criminal Cases Review Commission (Information) Bill

Andrew Selous Excerpts

Friday 4th December 2015 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Andrew Selous)]

Let me start by congratulating my hon. Friend the Member for Hazel Grove (William Wragg) on bringing this important Bill before the House and on his excellent speech. I also thank those other Members who have spoken in support of the Bill, including the hon. Member for Caerphilly (Wayne David), who spoke on behalf of the official Opposition.

The Criminal Cases Review Commission performs a vital function in our justice system. When thinking about criminal justice, we tend to focus on the front end and concerns that the processes involved in bringing criminals to justice and ensuring that victims are properly supported are as effective and efficient as possible. Sometimes we tend not to focus on the times when those processes go wrong—when, for whatever reason, someone is convicted who was, in fact, innocent. The purpose of the CCRC is to ensure that those people have someone to turn to who will thoroughly investigate and consider their case and, if there is a real possibility that their conviction would not be upheld, refer their case to an appeal court. I know that Members will agree with me about the importance of the commission’s investigations, and that it should have all the powers it needs to inform them.

The commission’s counterpart in Scotland—the Scottish Criminal Cases Review Commission—was established with the power to compel both public and private organisations to provide it with the documents or other material necessary to its investigations. The Bill’s provisions would put the CCRC for England, Wales and Northern Ireland in the same position. To avoid confusion, I should point out that the term “person” in the Bill should be read as covering a body of persons corporate or unincorporated. That means that the measure covers all natural and legal companies, including companies and partnerships, except those serving in public bodies.

In practice, when the Scottish commission notifies a private sector body or individual that it wishes to inspect relevant material, a reminder of the statutory power to make an application to court is usually sufficient to secure voluntary compliance. The Scottish commission advised us that there has been only one case in 15 years in which a request to inspect material has led to contested proceedings in court.

Hon. Members may have seen the Justice Committee’s 12th report of the last Session, to which colleagues have referred, on its inquiry into the Criminal Cases Review Commission. One of the Committee’s most urgent recommendations was that the commission should have the powers that this Bill will give it. It argued:

“The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support.”

The absence of a power to obtain material from the private sector has often operated to the disadvantage of applicants to the commission. The problem has become more acute in recent years. The difficulties are best illustrated by some examples from cases that have been reviewed by the commission. The first example relates to a media organisation. Shortly after trial, a newspaper published an interview with a complainant in a rape case. It was important for the commission to establish whether she entered into negotiations to sell her story prior to giving her evidence. It could be argued that the defence was unfairly deprived of an opportunity to cross-examine her regarding her motives for making the allegations. In a case where the conviction rested solely on the complainant’s testimony and credibility, this was particularly important. Despite repeated communications with the relevant journalist and the legal department of the newspaper, no response was received and the issue could not be resolved.

The second example involved an organisation in the banking sector. In respect of a serious fraud investigation, considerations of customer confidentiality were cited in response to the commission’s requests for information, despite the commission providing assurances about how the information would be handled and disclosed. The assertions made by the applicant could not be proved or disproved.

The third example demonstrates the problem as it relates to companies that have no direct involvement or interest in a case. In a drug importation case, the commission sought timetabling and cargo information from a ferry company. In the event, the company volunteered the information, but the commission could not have compelled it to do so. If the information had not been obtained, the commission’s overall decision on the case would have been less robust.

Companies sometimes refuse to provide details of employees. For example, in a murder conviction, the commission contacted a bank to seek the employment details of a former employee, a witness at trial, as the information was directly relevant to the credibility of the employee’s testimony at trial. After long correspondence, the police liaison officer for the bank agreed to provide the information requested, although there was no obligation to do so. However, the decision to co-operate with the commission was expressed as being only because the employee had left their employment in the bank.

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. Such requests are supported, as necessary, by waivers of legal professional privilege. In part, this level of co-operation has been thanks to the relevant professional codes of conduct that apply to solicitors. However, in more recent times—perhaps owing to 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 a solicitor’s list of priorities. My hon. Friend the Member for Hazel Grove made that point.

Files held by social services, schools and the NHS have been obtained and examined by the commission under the provisions of section 17 in other cases. However, the complainant in one case under review had been referred to a private sector counselling clinic, and despite lengthy correspondence, access to the private counselling records was denied. The significance of this information in relation to the complainant’s credibility and the safety of the applicant’s conviction remains unknown.

Charitable bodies such as the Samaritans, ChildLine and the National Society for the Prevention of Cruelty to Children often hold vital information relevant to commission reviews, particularly in cases of intra-family sexual 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 the information on the basis of confidentiality.

Campaign groups sometimes hold information vital to the progress of a review. In one case, a miscarriages of justice campaign group had gathered witness statements that were of apparent relevance to allegations of police misconduct. The organisation failed to respond to repeated commission requests and the statements were not obtained. The case was referred to the Court of Appeal in any event, but the statements may have provided useful additional support.

It is only right to acknowledge that the overwhelming number of private individuals approached by the commission agree to be interviewed, but some simply refuse to assist. The reasons for refusal are manifold. Some individuals do not wish to be bothered and are indifferent concerning the outcome of the commission’s investigations. Some may be hostile to the commission. Some come from gangs and may be reluctant to talk to the commission for fear of reprisals.

A key aspect of the commission’s work is the re-examination and retesting of material from crime scenes. With the abolition of the Forensic Science Service, such material will be held by private companies and may not be available to the commission. We therefore need the Bill.

The final example relates to the experts who appear as witnesses at trial. Many of them keep personal notes in addition to their professional notes and reports. Forensic medical examiners may receive information or notes from victims of crime during the course of their examinations. Short reports and second-hand accounts within NHS files are generally provided to the commission as a result of section 17. The original contemporaneous notes of interviews recorded by clinicians are not. That type of information is private rather than public, and the commission therefore cannot require its disclosure. The Bill will change that.

The commission will not simply be able to demand information or documents from private organisations or individuals. The Bill will require it to apply to the Crown court for an order, which will ensure that it can use the power only when a judge agrees it is necessary for the carrying out of its functions. We intend, once the Bill has received Royal Assent, to ask the criminal procedure rule committee to make rules of court that will ensure that, where appropriate, the court holds an inter partes hearing, giving the private organisation or individual the opportunity to make their case as to why disclosure should not be required.

The Government support the Bill because we believe that the provisions are necessary and that the terms of the Bill will ensure that the powers are used appropriately and proportionately. I therefore commend it to the House.