Criminal Cases Review Commission (Information) Bill

Baroness Evans of Bowes Park Excerpts

Friday 11th March 2016 Lords Chamber

[Baroness Evans of Bowes Park (Con)]

I thank my noble friend Lord Black for his probing amendment and all other noble Lords for their contributions to this short debate.

The amendment would stipulate that, where material is protected by legal professional privilege or if it is journalistic material or might reveal journalistic sources, there should be an inter partes hearing. Further, it says that, where such material is involved, the court must be satisfied that the material is of “substantial value” to the investigation; that it is not possible for the commission to obtain the material by other means; that it is in the public interest for the material to be disclosed; and that there is no significant reason why it should not be disclosed. Those are admirable principles with which we would not argue.

Of course, I understand the concern that the balance between freedom of speech and miscarriages of justice is a delicate one which we need to get right. However, we believe that the amendment is unnecessary and that in fact some of the terms used may go too far and would prevent the commission fully investigating cases where, we must remember, there may have been a miscarriage of justice. I was about to say a “significant or serious” miscarriage of justice, but of course all miscarriages of justice are significant and serious for those concerned.

Turning to the first point, we absolutely agree that inter partes hearings will be needed. However, it is not necessary to say so in the Bill as we intend that this will be dealt with in Criminal Procedure Rules, as the noble Lord, Lord Ramsbotham, said. I understand that the drafting of those is well advanced.

In addition, it is important to remember that the Crown Court, in deciding whether to make an order for disclosure, must act compatibly with the right to a fair trial under Article 6 of the ECHR. This means that, where a civil right or obligation is being determined, the court must ensure that the respondent has practical and effective access to the court, which includes notice of the proceedings and a reasonable opportunity to present their case. In other words, even without any Criminal Procedure Rules or anything on the face of the Bill, the Crown Court will need to ensure that there is an inter partes hearing before making an order.

There are four strands to proposed new subsection (8) in the amendment. The first requires that the material is of “substantial value” to the investigation. Of course, we may not know this until the material has been disclosed, so this could substantially hinder the court and defeat the objective of the Bill. The Bill currently stipulates that for all and any material:

“The court may make an order only if it thinks that the document or other material may assist the Commission in the exercise of any of their functions”.

That prevents the commission trying to make any fishing expeditions if it is inclined to do so. It is a clearer and more objective requirement and we believe that it is the right test.

I am further persuaded that the test proposed in the amendment is too high when I look at the wording in Schedule 1 to the Police and Criminal Evidence Act, which deals with decisions by the court to order material to be disclosed to a constable. The PACE test requires a judge to be satisfied that,

“there are reasonable grounds for believing … that the material is likely to be of substantial value … to the investigation”.

If we need any safeguard at all, I think that it should follow that model. However, as I said before, we do not believe that anything further needs to be added to the Bill.

The second requirement is that it should not be possible for the commission to obtain the material by other means. If the material were available in any other way, the commission would not be likely to pursue a court order at all, and if the material were otherwise available, the court should not make an order because the order would be unnecessary. We expect applications to the court to be rare. As the noble Lord, Lord Ramsbotham, outlined, that has been the case in Scotland, and we have no reason to believe that it will be different in England, Wales and Northern Ireland.

The third requirement is that it should be in the public interest for the material to be disclosed. There must be a substantial interest in the disclosure of any documents which may be needed in connection with decisions about a potential miscarriage of justice. Very compelling arguments would need to be made to justify material remaining confidential. Where there are such arguments, the respondent has the opportunity to put them before the court at an inter partes hearing, as I have said.

The final point is that there should be “no significant reason” why material should not be disclosed. This does not take into account the balance that the court must always make. There may be significant reasons why the material should remain confidential, but they may be outweighed by the more significant reasons in favour of disclosure. The amendment would prevent the court making that judgment. It would not be able to make an order no matter how pressing the case for disclosure, and we do not believe that that can be right.

If my noble friend is concerned that the safeguards I have mentioned so far are not enough, I can highlight a couple more. First, there is a restriction on information given to the commission being further disclosed. Section 23 of the Criminal Appeal Act 1995 prevents members or ex-members of the commission making unauthorised disclosure of information obtained by the commission in the exercise of its functions. Those disclosing information may ask that it should not be further disclosed without their consent. That provides a safeguard in the case of, for example, commercially sensitive information.

Clause 1(3) of the Bill clarifies that the restrictions on onward transmission will apply to documents obtained under the commission’s new powers in the same way that they apply to documents the commission may have obtained under its present powers. We should remember that the commission is used to dealing with confidential, sensitive and, indeed, classified material. It is in the nature of its work that its investigations uncover such information, and the necessary safeguards are already there.