Criminal Justice and Courts Bill

Dominic Grieve Excerpts

Monday 30th June 2014 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

I am announcing today the Government’s intention to table amendments to the Criminal Justice and Courts Bill [HL Bill 30] which would omit clauses 51 and 52 from the Bill. Clause 51 would amend the Contempt of Court Act 1981, in particular, to provide that a publication will not be treated as being in contempt of court under the strict liability rule in connection with legal proceedings where the publication is first made available before those proceedings are active. Under this clause, this defence would cease to be available on my giving notice to the publisher. Clause 52 would provide a related right of appeal against court injunctions.

The genesis of clause 51 was the Law Commission report Contempt of Court (1): Juror Misconduct and Internet Publications (Law Com No 340). The Commission’s consultation and review revealed concern among the mainstream media at their vulnerability to proceedings for contempt in relation to online archive material. The concern was that the law as it currently stands means prejudicial online material, even if published before proceedings became active, is still subject to the laws of contempt. The Commission acknowledged this and put forward a proposal that the Attorney-General should be responsible for alerting publishers to the presence of material which was potentially prejudicial and that proceedings were active. Until such time as an Attorney-General’s notice was served, a publisher would have a defence to contempt proceedings. The proposal was intended to provide the media with a measure of protection and reassurance while at the same time enabling the integrity of proceedings to be safeguarded. The Government agreed with the Commission’s legal analysis and believed the proposal struck the right balance between the right to a fair trial and the freedom of the press.

Although intended as a measure designed to assist and protect the media, the clause has been criticised on the grounds that it gives too much power to the Attorney-General. These representations were made to me, in particular, by the Society of Editors who in addition do not accept that this clause addresses a pressing problem and have suggested that the current powers available are sufficient to protect proceedings. In addition, the Joint Committee on Human Rights—14th Report of Session 2013-14—while considering that the provisions of the Bill are

“in principle an improvement on the position under the current law”,

have raised concerns about the safeguards connected with the notice procedure.

The Government have considered these concerns very carefully. Although the Government remain of the view that this is a balanced and measured proposal, they recognise the disquiet surrounding the proposal. Given that this measure was designed to assist the media, it is significant that representatives of the media consider that this provision does not do so. While the Government consider that the notice provision would be an improvement for the media, courts and Attorneys-General alike, it is satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings. On this basis, the Government have decided not to pursue this measure or the related clause on rights of appeal. The Government will accordingly table amendments to omit these clauses at the first opportunity.

Points of Order

Dominic Grieve Excerpts

Wednesday 26th February 2014 Commons Chamber

[Mr John Baron (Basildon and Billericay) (Con)]

On a point of order, Mr Speaker. I do not often raise points of order, as you know, but I seek your guidance briefly. We have just had an urgent question in which the Attorney-General was asked directly who first authorised those letters, but we have not yet had an answer. How best could we go about gaining one?

[The Attorney-General (Mr Dominic Grieve)]

rose—

[Mr Speaker]

I am happy to offer the hon. Gentleman a response, but if the Attorney-General wishes to speak at this stage he is most welcome to do so.

[The Attorney-General]

Further to that point of order, Mr Speaker. I try to pick my words with care so that the House is in no way misled. I am sure that the information can be supplied to my hon. Friend. I indicated that the letters were the collective acts of Government. It may be that we can go even further and identify who sent the letters, if they were Ministers. That is the proper answer to give. It was not the intention to try to conceal that information from him in any way.

[Mr Speaker]

We are grateful to the Attorney-General. I was simply going to advise the hon. Member for Basildon and Billericay (Mr Baron) that these matters can of course always be the subject of further questioning. I know from experience that he is as tenacious in the Chamber as I have found him to be on the tennis court over the years, so I see no reason why he will not pursue these matters if he is so inclined.

John Downey

Dominic Grieve Excerpts

Wednesday 26th February 2014 Commons Chamber

[Mr Laurence Robertson (Tewkesbury) (Con)]

(Urgent Question): To ask the Attorney-General to make a statement on the background to yesterday’s judgment on John Downey.

[The Attorney-General (Mr Dominic Grieve)]

I am grateful to my hon. Friend for his question. As I set out in a written statement to the House this morning, and further to yesterday’s written statement by my right hon. Friend the Secretary of State for Northern Ireland, the prosecution of John Anthony Downey on four charges of murder and one of causing an explosion with intent arising out of the Hyde park bombing in 1982 has been stayed. I apologise to hon. Members who have read my written statement because, of necessity, a large part of what I say will repeat it.

Hon Members will know that the alleged offences arose out of the notorious bombing carried out by the Provisional IRA in Hyde park on the morning of Tuesday 20 July 1982. As members of the Blues and Royals Regiment of the Household Cavalry rode along South Carriage drive on their way to Horse Guards for the changing of the guard, a car bomb exploded.

The effect was devastating. Four of the guard were murdered—Lieutenant Anthony Daly, who was aged 23, and Trooper Simon Tipper, who was aged 19, died at the scene; Lance Corporal Jeffrey Young, who was aged 19, died the following day; and Squadron Quartermaster Corporal Roy Bright, who was aged 36, died two days after that. A total of 31 other people were injured, a number of them seriously, and seven horses were destroyed.

Mr Downey was arrested on 19 May 2013 at Gatwick airport when he was en route to Greece. On his arrest, he produced a letter stating that he was free to enter the jurisdiction without fear of arrest. Despite that letter, he was charged by the Crown Prosecution Service with four counts of murder. Before he was charged, my consent was sought, as the law requires, for him to face a charge of causing an explosion, and I gave that consent. I believed that it was right to do so, and I remain of exactly the same view today.

As acknowledged by the judge, the allegations faced by Mr Downey were of the utmost seriousness. The bombing was an attempt by the Provisional IRA to bring its terrorist campaign to London and to attack armed forces personnel who were on ceremonial duties. Whatever the circumstances in which the letter had been sent, and it is now clear that its assurances were wrongly given, it was right that the matter should be tested in court. Neither I nor the CPS were prepared to accept that the letter and the circumstances in which it had been given were such as to automatically prevent Mr Downey’s prosecution. The prosecution of a very serious offence of that kind is plainly in the public interest.

The court heard full argument and considered a great deal of documentation. The judgment given is a detailed and careful assessment of the case and the circumstances in which Mr Downey received his letter. It is worthy of note that the defence offered four grounds on which they argued that the case should be stayed, and that on three of those grounds the judge found for the prosecution.

At no point did the judge suggest that it was inappropriate for the prosecution to be brought—indeed, he noted that

“the public interest in ensuring that those who are accused of serious crime should be tried is a very strong one”.

My own very strong view is that it was entirely appropriate and proper for this matter to be considered in a court of law.

Notwithstanding that, the judgment has now been given, and the CPS and I accept that judgment entirely. We do not consider that it gives rise to any prospect of a successful appeal, and we have therefore notified the court that we will not be appealing. My sympathies above all are with the families of those who died and with all those who were injured on that day.

[Mr Robertson]

I should like to thank you, Mr Speaker, for allowing this urgent question, and I thank the Attorney-General for his statement. May I explore some of the background to this matter? It has been clearly stated that the letter did not constitute an amnesty, but if that is the case, why did the judge take the decision that he took? In these circumstances, it would surely be appropriate for the Government to consider making an appeal.

May I also explore how we have arrived at this situation? I was a shadow Northern Ireland Minister when the Northern Ireland offenders Bill was withdrawn because it was obviously not going to get through Parliament. There was no mention at the time of any other deal being likely. Does the Attorney-General not consider what has happened since then to be a discourtesy to Parliament? Does he, like me, wonder who authorised the scheme that seems to have replaced the legislation? That must surely have been the then Prime Minister. Will the Attorney-General tell us who wrote the letters to the people who are often referred to as on-the-runs? What was in the letters? And I am afraid that I have to ask why the Police Service of Northern Ireland gave an assurance to Mr Downey that no other police force in the United Kingdom had any interest in him, when it knew that that was not the case.

May I also ask the Attorney-General how many people have received letters under the scheme? Will he tell me whether all those who have received such letters are from a republican background? At a time when the PSNI is advertising for Bloody Sunday witnesses to come forward, does he not think this situation risks undermining the entire criminal justice system of the United Kingdom?

[The Attorney-General]

May I first make the point that it is clear from the judgment and the supporting material that the administrative scheme was not, and never could be, an amnesty? That might have been what the previous Government sought at one time, but an amnesty could be achieved only through legislation, and no such legislation was put through the House. Parliament never approved an amnesty.

This was an administrative scheme that operated independently of the Government and was intended to identify those individuals who, although they might believe that they were unable to return to the jurisdiction without fear of arrest, would in fact face no prosecution or arrest if they were to return. The PSNI would check whether individuals were wanted for arrest or for questioning. If the individual had already been considered for prosecution, the Public Prosecution Service for Northern Ireland would make a careful assessment of its files to determine whether any prosecution would follow if the individual were to return. Many of the offences were historical, and in some cases, with the passage of time, essential witnesses might have died or forensic evidence might be no longer available.

The test applied by the Public Prosecution Service and approved by my predecessors in office was not simply whether the evidential test was no longer met, but whether it could no longer ever be met. Only in those circumstances would an individual be told that they were free to return. The position was also conditional on no further evidence subsequently coming to light of involvement in an offence. As to what happened in this case, it is quite plain that a serious error was made within the PSNI in relation to the information that it collated and provided to the Government. So far as the number of letters is concerned, I think that the better course would be for me to write to my hon. Friend, as I would not wish to give a figure that subsequently had to be adjusted, even very slightly.

[Emily Thornberry (Islington South and Finsbury) (Lab)]

I join the right hon. and learned Gentleman in paying tribute to the four soldiers from the Blues and Royals who were murdered in the Hyde park explosion and to the seven members of the Royal Green Jackets who were murdered on the same day in Regent’s park. Our thoughts are with their families, because they must be reliving their suffering all over again at this time.

I wish to make it clear that the Opposition completely understand and support the Attorney-General’s decision to proceed with the prosecution. We accept that the Downey judgment raises serious issues about how the scheme for dealing with on-the-runs, which, it must be and has been made clear, never offered immunity from prosecution to anyone, has been administered by successive Governments and agencies, and, in particular, about the role of the Police Service of Northern Ireland. Can we be assured that we will be told how this grave mistake occurred and how we can be sure that it will not happen again? Can the House be told how many letters to the so-called on-the-runs have been issued since this Government took office? I understand that the Attorney-General will write to the hon. Member for Tewkesbury (Mr Robertson), so perhaps he could copy me in on that letter.

Will the Attorney-General or the Secretary of State for Northern Ireland come to the House to make a statement once the investigations into this matter have been concluded? Perhaps the Attorney-General also shares my concern about the Prime Minister’s comments earlier this afternoon. I presume he has heard them. He may well agree with me that perhaps the Prime Minister misspoke and that it would be to the advantage of us all if the Prime Minister clarified exactly what he meant by them.

The sending of this letter was a terrible mistake, as was the failure to act when the mistake came to light. But this mistake, egregious though it was, does not discredit the Good Friday agreement and subsequent agreements. Very difficult decisions needed to be made, and very important leadership needed to be shown and was required on all sides. Northern Ireland has been delivered from a past of violence and sectarian hatred to a place where there is power sharing between old enemies, and that is what is happening at the moment. The people of Northern Ireland will not lose sight of that and our resolve to make sure that this peace process works must not be diminished.

[The Attorney-General]

I am grateful to the hon. Lady for her supportive comments about how the CPS and myself approached this case. I think that she knows that an inquiry will be held, and questions for that should be directed to my right hon. Friend the Secretary of State for Northern Ireland. That matter will be dealt with by the PSNI and the independent ombudsman. Clearly, answers will be needed as to what has happened. In addition, I entirely accept that the public will want to be reassured as to whether this is an isolated instance of a letter being sent mistakenly or whether there might be other such examples, in which case people will want to know what can be done about that. My understanding is that since the current Government came into office some 38 letters have been sent out. I hesitated to comment about what happened under the previous Administration, but once I have that information I will, of course, supply it. It is right to say that the person who had been charged, Mr Downey, denied responsibility for any role in this outrage.

The final comment I would simply make is this: the victims, including those who survived but were seriously injured, and their families are a matter that the House has constantly to keep in mind. The rule of law requires that those who are accused of grave crimes should be brought to justice, unless there is some overwhelming public interest to the contrary, and I have to say that in this case it was clear to me that the public interest was entirely in favour of seeking to bring this prosecution.

[Mr David Davis (Haltemprice and Howden) (Con)]

This country prides itself on its Government operating solely under the rule of law, so I hope that my right hon. and learned Friend will forgive a layman’s question about the law in this case. He describes an administrative system, but under what law is this administrative system created whereby a well-respected judge in this country accepted that this letter should, in effect, give this man an amnesty? Whether or not the Attorney-General describes it in those terms, that will be how it is seen both in this country, including in Northern Ireland, and abroad. So under what law is this constituted? Can he give the House an absolute assurance that he is sure that the criteria that he laid down—the administrative ones—have been followed in all cases?

[The Attorney-General]

My right hon. Friend is, of course, right that judges should interpret and implement the law, but I have to say that I have no reason to fault the judgment in this case. As well as the public interest in prosecuting, clear issues of fairness in the way in which prosecutions and investigations are conducted are involved, which are subject to the potential for abuse of process applications—that is what took place in this case.

The judge provided reasons, clearly set out, as to why, in respect of one of the four grounds advanced, which centred on the letter that had been sent, it would in his view be wrong and an abuse of process if the prosecution were allowed to continue. That centred on the fact that the person concerned, Mr Downey, had been misled by the letter. I do not think that I can say any more than that.

As to the principles underlying the other letters, this was an administrative process—one that was certainly lawful—in providing information solely to those who were not wanted. As I said earlier, it is quite clear from this instance that something went badly wrong. Whether it went badly wrong in other instances is not a matter about which I can, at the moment, help the House.

[Mr Peter Hain (Neath) (Lab)]

May I welcome the fact that the Attorney-General has described the process as lawful? Will he confirm that it was overseen by the Law Officers, including the Attorney-General? The fact of the matter is that the process was designed to address 200 or so individuals. The whole situation was an anomaly. To achieve and lock in the peace process following the 1998 Good Friday agreement, 400 prisoners were released, some of whom had committed terrible atrocities. That angered victims at the time, which I understand, but it was an essential part of getting to where we are now. Similarly, addressing the question of the 200—that anomaly—was part of that as well.

As for the idea that this was some secret thing out of the blue, I told the House on 11 January 2006 that, in withdrawing the legislative approach to addressing the anomaly,

“the Government still believe that the anomaly will need to be faced at some stage”—[Official Report, 11 January 2006; Vol. 441, c. 288.]

No one should have been surprised that we had to do that. It was necessary to get to a position in which Northern Ireland could escape its hideous past of evil and terrorism and enter into a period of almost universal peace and stability, with old enemies negotiating and governing together. That should be welcomed and our role as a Government in achieving that should be commended, and I hope that the Attorney-General will do so.

[The Attorney-General]

I am extremely mindful that the right hon. Gentleman and others on both sides of the House worked hard during the peace process. Indeed, they continue to do so, as this process is by no means complete. I am the first to pay tribute to him for the work that he did.

There is an important distinction between releasing prisoners under an exercise of the royal prerogative of mercy, as part of a peace settlement, and any suggestion of an amnesty. Those two things are rather different. As the right hon. Gentleman knows, there was no such amnesty. Indeed, any suggestion that we might move towards an amnesty was firmly rejected by widespread views expressed in Parliament.

[Mr Hain]

And by the Government.

[The Attorney-General]

And the Government accepted that. For those reasons, we have a system. The right hon. Gentleman says that he explained to the House—he certainly did—about looking at other methods. I think that it is best for him to explain what publicity or otherwise that may have attracted. He is quite right that the system of giving an assurance to an individual that they are not wanted because they are indeed not wanted and there is no current basis for wanting them is not an unlawful process in which to engage.

Finally, the right hon. Gentleman raised the oversight of the Law Officers. He is quite right that, during this process, the office of the Attorney-General operated as the co-ordinating point, because the Public Prosecution Service for Northern Ireland could not and would not communicate directly with Northern Ireland Office, and therefore collated the information that was supplied. In fairness to my predecessors, it is probably right to say that they would have had no independent means to verify whether or not someone was wanted, and reliance for that was placed on the PSNI and its links with other police forces in the other jurisdictions of this country.

[Dr Julian Huppert (Cambridge) (LD)]

This was a horrible and brutal murder, and the outcome is clearly grossly unsatisfactory. If the Attorney-General is sure that nothing further can be done in this case, I accept that, and I hope that he has exhausted all possibilities. Will he say more about how he will check that no other errors of this kind are waiting to come up later?

[The Attorney-General]

Those checks are now being conducted. They will not be conducted by me. My office might be involved in them, but I think that they are primarily for the Northern Ireland Office to carry out. I know from my right hon. Friend the Secretary of State that that is exactly what is happening.

As to my hon. Friend’s first point, if I had thought there were proper grounds on which this decision could be appealed, then of course the Crown Prosecution Service and I would have taken a different view. However, it is not in the public interest to pursue appeals that are pointless.

[Mr Nigel Dodds (Belfast North) (DUP)]

I too pay tribute to the families who have been left bereaved as a result of the Hyde park bombing and other such incidents. There are victims everywhere who are feeling very hurt today. The Attorney-General says that it was right to bring the prosecution. Does he still believe that it is right that no stone should be left unturned in the pursuit of justice in this case, and what further action will he now take, given that this case has only been stayed, to ensure that justice will be done, and be seen to be done by the victims?

In the light of the questions asked by the hon. Member for Tewkesbury (Mr Robertson), many of which were not answered—I thank him for raising them in the House today—does the Attorney-General also agree that there is a strong case for a full inquiry to bring out all the facts, such as under what authority the scheme was set up, who knew about it, who was informed, what the letters said and who they were sent to? That would mean that, for once, Parliament could examine the scheme. There has been no knowledge or even a hint of information about it, which is a scandalous abuse of Parliament and the people’s representatives.

[The Attorney-General]

I will, if I may, take the right hon. Gentleman’s final question first. Let me emphasise to him that of course this is a legitimate matter of debate, and he may wish to raise it, but it is not one that I, within my departmental responsibilities, could address. It would have to be looked at elsewhere. So far as the stay is concerned, yes it is indeed a stay, but lifting a stay requires specific grounds. I know of no basis for thinking at the moment that a stay is ever likely to be lifted in the future. Obviously, I am not for any reason pre-empting that. If something were to come to light that justified applying to have a stay lifted, then that is a matter that would be considered.

As for the other cases and whether they will be pursued, I would like to make the position absolutely clear. My responsibilities as far as criminal justice is concerned lie within England and Wales; Northern Ireland is now devolved. If cases are brought to the Crown Prosecution Service suggesting the commission of very serious crimes by individuals who can be apprehended and brought to justice, then what I said earlier must be the case. It would generally be in the public interest—it would be very rare to think of where it would not be in the public interest—for such a prosecution to be pursued. That is quite irrespective of the amnesty provisions of the Good Friday agreement, which may reduce, for example, the period of time somebody might spend in prison. It is always in the public interest that crime should be prosecuted.

[Mr Graham Brady (Altrincham and Sale West) (Con)]

Given that the letter was issued in error, can my right hon. and learned Friend confirm that it has now been rescinded and will have no effect on any future occasion?

[The Attorney-General]

No, I cannot give my hon. Friend that assurance. I understand his point, and I am happy to get back to him.

[Kate Hoey (Vauxhall) (Lab)]

Does the Attorney-General understand that all these fine words about errors and administration mistakes will not wash with the people of Northern Ireland who will see that this has been an amnesty under another name? It is an amnesty that has been put through without this Parliament’s permission when it specifically decided, when the Bill was withdrawn, that it did not want it to happen for on-the-runs. I want to know why we are blaming an individual in the police for writing or sending those letters; they did not write them without somebody at the very, very top of Government telling them to do so.

[The Attorney-General]

As for the hon. Lady’s views about how this would be viewed in Northern Ireland, I suspect that it would be viewed in the same way on this side of the Irish sea. I do not have any reason to differ with her analysis. Most right-thinking people will be shocked and profoundly troubled by what has happened.

I disagree with her characterisation of the letters being tantamount to an amnesty; I do not think that they were, if written as they should have been and sent to the recipients who should have received them. Unfortunately, in this case, as we know, somebody received a letter that they should not have received. I do not wish to comment further. The PSNI has indicated that it takes responsibility for the information that was supplied. The hon. Lady believes that fault might lie elsewhere; I am in no position to comment on that one way or the other. I can only say that the information I have at the moment does not suggest that the fault lies elsewhere.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

I hope, given these awful events, that the Government think long and hard about the perception that will be apparent if we are giving an amnesty to one group of people while actively pursuing others, like potentially the soldiers who were involved in the Bloody Sunday incident. Can my right hon. and learned Friend confirm that reconciliation and justice and forgiveness apply to both sides, not just one?

[The Attorney-General]

I understand my hon. Friend’s comment. As I have also tried to make clear, I do not believe an amnesty is in place. Ultimately, in relation to offences committed in Northern Ireland, now that justice and policing are both devolved, these are not matters for me.

[Dr Alasdair McDonnell (Belfast South) (SDLP)]

May I offer my sympathy and the sympathy of my party to the relatives of those who died in Hyde Park, and of the seven Royal Green Jackets who died the same day? There are a lot of unanswered questions and I thank the Attorney-General for his information so far. We are told that this was a mistake—an error—but people want to know what aspect of the deal was a mistake. Was the mistake just because this came out? Or was the mistake just one mistake—this one letter—or were there 187 mistakes?

People want to know about the trade-off. People have been asking me how many of the people receiving letters were British agents. Victims and survivors out there want answers—honest answers. All the victims and survivors deserve honesty, openness, straight answers and, ultimately, justice. They deserve to know why and how their loved ones died, and they deserve to know what was at the back of the deals that were done and the basis for the deals. As my hon. Friend the Member for Foyle (Mark Durkan) said, we had a dirty little war. Victims and survivors want to know that we are not going to be burdened with a peace contaminated by dirty little side deals.

[The Attorney-General]

As I understand the matter, and there may be others in the House who are better able to answer on the policy background, it arose out of a desire to provide reassurance to those who feared coming back into the jurisdiction that they could do so on the basis that there was no prospect of their being prosecuted on the evidence currently available to the authorities—the PSNI, as in this case, or other police forces. That was the basis of what happened. Of course, the hon. Gentleman is right: the wider way in which the peace process has been conducted is a legitimate matter for political debate, but in my role as the Attorney-General I endeavour to focus on what I see as the issues, and as I said earlier, there was nothing unlawful about the letters. There was no amnesty. But, as I accept, it is quite clear from the court judgment and the facts that emerged in the case of Mr Downey that Mr Downey should never have been sent the letter.

[Bob Stewart (Beckenham) (Con)]

My heart breaks for the families and the victims of this appalling atrocity. Five months after it happened, my soldiers were killed in Ballykelly. Seventeen people—11 soldiers and six civilians—were killed. I gave evidence against the five people who were charged with that crime—five people. Does that mean that others who were involved in this appalling atrocity are not being chased vigorously by the Police Service of Northern Ireland and brought to justice?

[The Attorney-General]

I have absolutely no evidence to suggest that cases are not being pursued simply because they might be old. That is not the case. Indeed, if that had been the case, Mr Downey would not have been picked up at Gatwick airport.

[Lady Hermon (North Down) (Ind)]

I have enormous regard for the Attorney-General, and this Attorney-General knows perfectly well that the European convention on human rights guarantees an effective remedy for every breach of the rights guaranteed in our convention. I am sure that the Attorney-General and others in the House would agree with me that the right to life is the most important right of all. I am absolutely disgusted, and extremely upset and angry, that we now discover that successive British Governments have secretly, wilfully and intentionally deprived families of an effective remedy when their loved ones have been murdered by the IRA. How this Government can hold their heads up and talk about respect for human rights and the right to life and the rule of law beats me, but I am sure the Attorney-General will assure me and the House with very nice words that in fact that is the case.

[The Attorney-General]

I am not sure whether I can use nice words, but I shall do my best to answer the hon. Lady’s question honestly. Had the scheme operated in the way that was intended, then I have to say that I do not think there was any prospect of anyone, relatives or otherwise, being denied justice in relation to anybody who received such a letter. But that is on the basis that the scheme operated properly. It is quite clear that in this case it did not operate properly because Mr Downey should not have been sent this letter. We will have to wait and see whether this is some wider failure, which applies elsewhere, but certainly from the information that I was given when I looked into this matter at the outset, there was a system in place to try to ensure that every nook and corner was looked at before such letters were sent.

[Mr John Baron (Basildon and Billericay) (Con)]

However it is presented, the recipients of these letters are above the law. That is what this court decision has made clear. Will my right hon. and learned Friend confirm that a balanced approach will therefore be taken as regards former soldiers serving in Northern Ireland? We have heard that the authorities are already advertising for witnesses in the case of Bloody Sunday. Will he also answer one question that has not been answered so far? Who in the Government authorised these letters?

[The Attorney-General]

I disagree that the letters placed the recipients above the law.

[Mr Baron]

That is what the court has decided.

[The Attorney-General]

No; it has not decided that the letters placed people above the law. If the letters had been correctly sent to recipients against whom there was no evidence at the time on which criminal proceedings could be brought against them if they returned to the jurisdiction, they had no possibility of putting them above the law, and as I mentioned, the letters leave open the possibility that if evidence were to come to light implicating such individuals, they could still be prosecuted. The difficulty in the case of Mr Downey was that the evidence against him was already available at the time the letter was sent, which is why he should not have been sent the letter.

I am not in a position to comment on the position of former soldiers. I simply make the point that the general rules and principles of the rule of law apply, irrespective of who may or may not have committed an offence. But in any event, my own direct responsibilities do not extend to the Public Prosecution Service for Northern Ireland.

Those are the two points I would wish to make, but I reiterate that these letters did not amount to an amnesty.

[Sammy Wilson (East Antrim) (DUP)]

Regardless of how the Attorney-General tries to paint this issue, this shoddy, shabby, sleekit, behind-the-door deal is, in effect, seen as an amnesty, and in the case of Downey it has, in effect, been an amnesty. If the Attorney-General wishes to dispel any collusion in this by the current Government, given the fact that he has open to him appeal, judicial review and removal of the letter, will we not see one or all of those actions taken to give assurance to the public that this Government have got no part in the deal that the Labour Government undertook behind the back of this Parliament?

[The Attorney-General]

Our prosecutorial services are independent. If the Crown Prosecution Service thought that it was justified in appealing the decision that has led to the stay, it would be wholly within its discretion to decide to do so. It is right that I discussed the matter with the CPS. It was quite clear from that discussion, and indeed I concur with the view, that there was no basis for taking the matter further.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Anthony Daly was one of those killed by this bomb. He was a friend of mine, a man I knew well and a great man, and he perished in the service of his Queen and his country. May I ask the Attorney-General, first, what steps have been taken to ensure that safeguards were put in place for these kinds of letters, and have remained in place or been strengthened? Secondly, what measures were taken to discipline the people responsible for issuing this letter, at any level of the chain of authority? Thirdly, what measures will now be taken to ensure that those people make some public apology for what has been done?

[The Attorney-General]

I should say first of all that the police have already apologised for what has happened through the Chief Constable of the PSNI, and as I indicated there will be an inquiry by the police ombudsman. I have no doubt that that inquiry will be wide-ranging as to how this problem emerged. I hope that it will be able to provide the best safeguards, linked with the other work that will be done by the Northern Ireland Office and others, to ensure that there is never a repetition of this.

[Naomi Long (Belfast East) (Alliance)]

I, too, extend my thoughts and my sympathies to those who suffered that day in Hyde park and have continued to suffer ever since, and who have suffered again as a result of this shabby and secretive side deal that was done as part of the peace process by Labour. I also want to disabuse Members of the idea that this deal bears any comparison with the early release scheme in the Good Friday agreement, which was voted on by the people of Northern Ireland and accepted by them, as opposed to this deal, which was shabbily driven through behind the backs of even the representatives in this Parliament.

The Attorney-General has confirmed that 38 letters have been sent since 2010. That is an important date, because it marks the devolution of policing and justice to the Northern Ireland Assembly. This process continued after devolution, yet had profound implications for the work of the Historical Enquiries Team and the Northern Ireland Policing Board, and it continued without the knowledge of the Minister of Justice for Northern Ireland or the Policing Board. Who administered the scheme? Who negotiated with devolved institutions behind the back of the Minister of Justice for Northern Ireland, so that this scheme could continue?

[The Attorney-General]

The hon. Lady raises a large number of highly pertinent questions, and I hope she will forgive me if I say that I do not think I am in a position to answer all of them at the Dispatch Box today, particularly because my remit and responsibility in this matter is confined to a number of very specific things.

The hon. Lady says that she considers the scheme to be a shabby side deal; I am sure that will be noted in this House by those who had cause to develop or operate it. I do not think I can comment further on it than that. She makes the point that it is quite different from the Good Friday agreement, and I have no reason to disagree with her about that; I commented on that myself and said that it is quite distinct. Nevertheless, I come back to the point that I raised before, that my understanding is that it was done with the intention of taking the peace process forward, and done in a way that was not intended to prejudice, first, the rule of law and, secondly, the right of victims and relatives of victims to see justice be done. That was the basis on which it was proceeded with and not on some other shabby basis, as she describes it. However, I have to accept, in the light of what has happened in this case, that while I suppose it might be argued that had the letter never been sent, Mr Downey would never have appeared at Gatwick airport, nevertheless the circumstances of what has happened are very unsatisfactory.

[Nigel Mills (Amber Valley) (Con)]

Will the Attorney-General confirm whether it would be effective for this Parliament to pass a resolution, or an amendment to a Bill, saying that these letters have no effect and should be ignored by the court in considering staying prosecutions?

[The Attorney-General]

The letters were statements of current fact. I do not think that, in themselves, they make any difference to the matter. It would be a matter of debate, on which we could engage, whether the letters could be rescinded, but that is a matter that would have to wait for another day.

[David Simpson (Upper Bann) (DUP)]

I also pay tribute to the families, who will again go through a lot of trauma. Yesterday was a very sad day for British justice. Let us remind ourselves that these on-the-runs were murdering scum who destroyed and ruined lives in Northern Ireland by shooting and bombing. When someone receives a letter saying that there is no longer an interest in them, or that no police force has an interest in them, what do they take from it? It is an amnesty in all but legislation. It is a disgrace and we need a full inquiry into it.

[The Attorney-General]

On the issue of a full inquiry, I am sure that my right hon. Friend the Secretary of State for Northern Ireland has noted the hon. Gentleman’s comments. I do not think that I can say more on that.

[Mr Robert Buckland (South Swindon) (Con)]

May I associate myself with remarks in support of the victims of this and other appalling crimes that go unpunished? I was not aware that the chief of staff to the then Prime Minister or officials in the Northern Ireland Office had any role in policing or prosecution, and I am amazed that letters are being sent from that part of Government relating to issues that are bound to be referred to in a court of law. Will my right hon. and learned Friend assure me that that manipulation—that misuse of the process—will not recur, and that those who are responsible for prosecution and policing send letters in their own name rather than through Government Departments?

[The Attorney-General]

My hon. Friend makes perhaps an important point. It is right to say that the letters were sent on the basis of decisions taken by both the Public Prosecution Service and the PSNI, in the context of Northern Ireland, and if domestic matters elsewhere in the UK were concerned, by their prosecutorial authorities. To that extent, it was an administrative system independently conducted of Ministers; I want to make that quite clear. However, it is also right that, at the end of the process, it was ministerial letters, or letters from officials, that constituted the giving of the information.

[Ian Paisley (North Antrim) (DUP)]

This is a sad and sorry affair, which unfortunately is written in the blood of our brave servicemen on the streets of this wonderful city. We should never lose sight of that. However, does the Attorney-General recognise that the case law now established by this case and its outworking has done grievous harm to the rule of law and how it is considered across the whole of the United Kingdom, and will continue to do so unless he takes specific steps to rescind all the letters to all the individuals, and does his best to find fresh factors or new evidence to prosecute—once again—Mr John Downey?

[The Attorney-General]

So far as rescinding of the letters is concerned, that is not a matter for me. [Interruption.] No, it is not a matter for me, acting in my capacity; I accept that it could be a matter for Government, but it is not a matter on which I can give such an assurance to the hon. Gentleman.

On the question of case law, let me make the position quite clear. There is very well-established case law about abuse of process, and cases being stopped on the basis of an abuse of process, particularly in relation to assurances given that an individual might not be prosecuted for something, has not just suddenly emerged. It is perfectly well established in our law and indeed is part of our rule of law, for the very good reason that assurances given by public administrations may be binding upon them if they lead somebody to do something to their detriment.

In this case, as I have made clear, we took the view that there were arguments that could properly be put forward to the court that, although there was an error, it did not amount to an abuse of process and was not justified. The court has taken a different view, but I do not think that one can draw general conclusions about other cases from this case, which falls on its own individual facts.

[Rehman Chishti (Gillingham and Rainham) (Con)]

First, may I applaud the Attorney-General for the way in which he has handled this case by authorising prosecutions? My question relates to what he has just said. If there are other cases with similar circumstances and similar letters, will they still be prosecuted in the light of the judgment and the fact that the Crown Prosecution Service has not challenged that decision?

[The Attorney-General]

As I have indicated, all the background facts relating to each letter that has been sent will be checked, and that should disclose whether any error has been made. I want to reiterate the point that if it were to emerge that no other letters contained errors the suggestion that those letters in some way amounted to an amnesty simply cannot be right. They would be mere statements of fact, and of the position that existed at the time at which those letters were written.

[Ms Margaret Ritchie (South Down) (SDLP)]

Given yesterday’s announcement in the court system, what assurances can be given to families—who are awaiting justice in relation to the deaths of their loved ones and what happened surrounding those deaths—that they will not face similar revelations about side and shoddy deals?

[The Attorney-General]

I hope very much that no one will have to deal with side and shoddy deals. It is a matter of opinion as to whether the process of assurances to the on-the-runs was a proper one to pursue. It is a matter for political debate.

[Gareth Johnson (Dartford) (Con)]

The ending of criminal proceedings against John Downey is deeply disturbing, so will the Attorney-General confirm that while criminal proceedings are preferable and what we all want to see in the House, there should be no bar to civil proceedings against Mr Downey by the victims’ families?

[The Attorney-General]

Civil proceedings are for the individuals concerned but, no, the letters do not amount to any sort of bar on civil proceedings.

[Dr William McCrea (South Antrim) (DUP)]

No one can fully understand the hurt felt by families whose loved ones have been murdered, and sympathy from politicians for families of innocent victims will not be enough to heal that hurt. Indeed, at times, politicians’ actions can add to that hurt, as in this case. John Downey is believed to have participated in the cold-blooded murder of the innocent. Does a letter signed by a Government official abort the right to justice? Who else has received these letters? For example, have Gerry Adams and Martin McGuinness received similar letters? Have soldiers and police officers received similar letters to give them immunity from prosecution, or are these special letters simply for terrorists, gangsters, thugs and murderers? What other dirty deals have been done behind the backs of the people of Northern Ireland and their elected representatives?

[The Attorney-General]

I agree entirely with the hon. Gentleman that the hurt of the relatives of victims and, indeed, if they survived, of the victims themselves is a matter of which the House should be well aware. I suspect that it is right to say that there are very few Members who do not know people personally who have been affected by the violence in Northern Ireland. I certainly do.

As for the hon. Gentleman’s other points, the best course of action, if I may recommend it to him, rather than asking me questions which, in truth, within my responsibility, I cannot answer, is to initiate the things he wishes. There is a wider review as to what has happened, but first he may wish to see what the police ombudsman has to say in the internal inquiry report. Then, of course, the House is a Chamber in which these matters may be debated.

[Mr Andrew Turner (Isle of Wight) (Con)]

Who approved the letter en bloc or individually?

[The Attorney-General]

I choose my words to my hon. Friend with care because, over time, the letters may have been approved in slightly different ways. Let us be quite clear: these letters were ultimately the responsibility of the Governments in office at the time at which they were sent. I will not accept the suggestion that it was otherwise. That is a completely distinct issue from that of where mistakes may have been made in the factual analysis before the letter was sent.

[Mark Durkan (Foyle) (SDLP)]

This is not just about some unsatisfactory circumstances. This is traumatising victims, and it is scandalising the public. The court seems to have been misled into thinking that all parties agreed at Weston Park—that is implicit in the judgment. All parties did not agree at Weston Park, nor did they agree in the submissions that we made to Government papers after Weston Park, and certainly, all parties but Sinn Fein opposed the disgraceful Hain-Adams Bill that purported to give an amnesty through legislation.

Will the Attorney-General address the implication of a judgment that basically says that even the wrong word of a Government official as part of a secret scheme should trump due process and the transparency of the rule of law? Is there not a danger in allowing that as the going rate for the future, if there is no appeal in this case? As for the status of the letters, could Parliament legislate to rescind or qualify the import of them?

[The Attorney-General]

Can I try to deal with both matters in turn? I disagree with the hon. Gentleman’s characterisation that the court’s decision is in some way an infringement of the rule of law. I recommend, if he wishes, that he read the judgment. Far from its being an undermining of the rule of law, I have to say, while it may be a result with which I am uncomfortable and would hope that it might have been otherwise, it is actually an upholding of the principles of the rule of law, even when it has an outcome that we may find extremely uncomfortable, because it emphasises the fairness at the heart of our criminal justice system. As for the other matters that the hon. Gentleman raised, it seems to me that they are matters, as I said earlier, for wider debate.

[Michael Ellis (Northampton North) (Con)]

Having worked in the criminal justice system for over 15 years, and having dealt with applications to stay prosecutions, this strikes me as an appalling travesty of justice. May I press my right hon. and learned Friend about the prospect for an appeal? Stays of prosecutions and stays of proceedings can be reversed by the Court of Appeal. These things are open to different interpretations by different judicial persons. The terminology in the letter might possibly be open to an alternative interpretation, and the source of the letter is questionable as not having come ostensibly from a prosecutorial authority. Will he not reconsider the possibility of an appeal to the Court of Appeal against this stay?

[The Attorney-General]

I have to say to my hon. Friend that, in any event, it is a decision that has been made by the Crown Prosecution Service and me. I have explained the reasoning behind it, and I believe that our decision is the correct one.

[Jim Shannon (Strangford) (DUP)]

There is palpable anger and concern about the decision to give John Downey freedom as a result of that letter, and it poses many questions. Four young Ulster Defence Regiment men were killed in Ballydugan in Downpatrick. Eight people were arrested and questioned, then freed. The three IRA men who killed Kenneth Smyth, a sergeant in the UDR, and his best friend, Danny McCormick, in December 1973 have never been tried. An IRA man killed Lexie Cummings in Strabane, and I secured an Adjournment debate on the matter in the Chamber, which was attended by my good friend, my right hon. Friend the Member for Belfast North (Mr Dodds). A former Minister of State replied to it, and referred to the HET inquiry. The question is whether the HET even knew that someone was on the run.

From Strabane to Ballywalter, for both Protestants and Roman Catholics, the anger is real and makes us all wonder just how many of those involved in these murder cases that I have mentioned and others wander around with a bit of paper, which is their passport to freedom, while families and loved ones grieve. Will the HET and the PSNI be given the details of 200 names for inquiries that they have yet to carry out?

[The Attorney-General]

The starting point, I think, will be the inquiry carried out by the PSNI and the ombudsman. I hope that that will enable the facts to be established, and will enable some reassurance to be provided—or not, as the case may be—as to whether there are other examples of errors that have been made in these cases. I come back to the point that, on the basis that there were no other errors made, it is quite clear to me that no individual has acquired any immunity from being proceeded against for crimes that they might have committed during the course of the troubles.

[Guy Opperman (Hexham) (Con)]

In my 15 years at the Bar I prosecuted or defended in well over 50 abuse of process claims, and I regret to have to inform the House that very occasionally such mistakes take place. Although my heart goes out to the victims and their families, and while that is clearly a travesty, it occasionally takes place. I entirely endorse the Attorney-General’s approach on that point, but does this case not show that a review by the United Kingdom Government of such sensitive cases is now required, whether in the Northern Ireland context or for other conflicts, by independent counsel, so that such a travesty does not occur again?

[The Attorney-General]

My hon. Friend makes a perfectly good point, and I would hope—obviously, I cannot predict exactly how the matter will unfold—that as a result of the PSNI’s inquiry there will be a wide-ranging review of not only how the letters were sent, but whether anything else needs to be done in that respect.

[Andrew Stephenson (Pendle) (Con)]

If issuing the letters was not part of any legislation that went through this House, what law gave the Government of the day, the current Government or any officials the right to issue them in the first place?

[The Attorney-General]

I certainly accept that what happened was unusual, but I do not think that there was anything unlawful—I have made this point repeatedly—in indicating to a person that they were not sought and that there was no evidence against them in respect of any offences. If my hon. Friend analyses the information, he will understand why that is the case.

Prosecution Decision

Dominic Grieve Excerpts

Wednesday 26th February 2014 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

Further to yesterday’s written statement made by my right hon. Friend the Secretary of State for Northern Ireland, and following lengthy legal argument and a 53-page judgment from the court, the prosecution of John Anthony Downey on four charges of murder and one of causing an explosion with intent arising out of the Hyde Park bombing in 1982, has been stayed.

The alleged offences arose out of the notorious bombing carried out by the Provisional Irish Republican Army in Hyde Park in the morning of Tuesday 20 July 1982. As members of the Blues and Royals Regiment of the Household Cavalry rode along South Carriage Drive on their way to Horse Guards for the Changing of the Guard, a car bomb exploded. The effect was devastating. Four of the Guard were murdered—Lieutenant Anthony Daly, who was aged 23, and Trooper Simon Tipper, who was aged 19, died at the scene; Lance Corporal Jeffrey Young, who was aged 19, died the following day; and Squadron Quartermaster Corporal Roy Bright, who was aged 36, died two days after that. A total of 31 other people were injured (a number of them seriously) and seven horses were destroyed.

John Anthony Downey was arrested on 19 May 2013 at Gatwick airport where he was en route to Greece. On his arrest he produced a letter stating that he was free to enter the jurisdiction without fear of arrest. Despite that letter he was charged by the Crown Prosecution Service (CPS) with four counts of murder. Before he was charged my consent was sought, as the law requires, for him to face a charge of causing an explosion. I gave that consent.

I believed then that it was right to do so and I remain of the same view today.

The allegations faced by Mr Downey were of the utmost seriousness. The bombing was an attempt by the Provisional IRA to bring their terrorist campaign to London and to attack armed forces personnel who were on ceremonial duties. Whatever the circumstances in which the letter had been sent, and it is now clear that its assurances were wrongly given, it was right that the matter should be tested in court. Neither I nor the CPS were prepared to accept that the letter and the circumstances in which it had been given were such as to automatically prevent Mr Downey’s prosecution.

The court has now heard full argument and has considered a great deal of documentation. The judgment given is a detailed and careful assessment of the case and the circumstances in which Mr Downey received his letter. The CPS and I do not consider it gives rise to any prospect of successful appeal, and I am therefore of the view that the matter cannot be pursued further.

My sympathies are with the families of those who died and with those who were injured.

Parliamentary Written Answer (Correction)

Dominic Grieve Excerpts

Wednesday 18th December 2013 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

I regret to inform the House that a written answer I gave on 5 December 2013, Official Report, column 809W, to the right hon. Member for Haltemprice and Howden (Mr Davis) was incorrect.

The right hon. Member asked me how many libel settlements and of what value the Crown Prosecution Service made in each year between 2007 and 2012.

The data concerning the Crown Prosecution Service (CPS) were incorrect and it was stated that the CPS made no libel settlements between 2007 and 2012.

The correct answer is as follows:

Details of individual payments in respect of libel settlements are not specifically identified on the Crown Prosecution Service (CPS) accounting system. A review of manual records retained on civil claims indicates that in the period from 2007 to 2012 the CPS made two libel settlements:

Points of Order

Dominic Grieve Excerpts

Wednesday 11th December 2013 Commons Chamber

[Mr Speaker]

I am grateful to the right hon. Gentleman for his point of order. In the first instance, I can ask the Attorney-General to respond, and we will see what happens.

[The Attorney-General (Mr Dominic Grieve)]

Further to that point of order, Mr Speaker. I am grateful to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for indicating to me a short time ago that he wished to make that important point. At the moment, I am not in a position to answer his question. He is absolutely right that the answer I gave him was based on information provided to me by the Crown Prosecution Service. He has given me some information that gives rise to a question as to whether that is accurate. I take that very seriously and the matter is being looked into urgently. When I have an answer, I will of course ensure that it is not only supplied to him, but made available to the House.

[Mr Speaker]

I hope that satisfies the right hon. Gentleman for today. I thank him for raising this important matter, which really is a public service. I am sure that clarity will be established, and hopefully very soon.

Abortion Act

Dominic Grieve Excerpts

Wednesday 9th October 2013 Westminster Hall

[Fiona Bruce (Congleton) (Con)]

Honourable Members, has it come to this? People in this country have spent 40 years fighting discrimination, but no action is to be taken when one of the most blatant forms of discrimination—the deprivation of life on account of being a girl—is highlighted. I congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on bringing forward the debate, and I entirely agree with him that the time has come to review the moral, legal, ethical and practical framework in which the Abortion Act operates.

This is not the only form of discrimination against the unborn child in this country. Over the course of more than a year, the cross-party parliamentary inquiry into abortion on the grounds of disability, which I had the privilege of chairing and which published its report in July, took evidence from 300 witnesses. The full report can be seen at the website abortionanddisability.org. Just as people are shocked that abortion can be allowed on the grounds of sex, people we spoke to were shocked to discover, in an age when we go to extensive lengths to accept, support and respect disabled people, seeing them as wholly equal, that a child can be aborted right up to the moment of birth on the grounds that they may be disabled. In contrast to the situation for non-disabled babies, there is no 24-week time limit. Indeed, we heard that many expectant mothers felt funnelled into having an abortion when they were told that they were expecting a potentially disabled child.

The inquiry highlights the lack of clarity in the abortion regulations about what constitutes a serious disability. Some mothers who were told they were expecting a disabled child told us the diagnosis was wrong. Others were told that abortions would be allowed on the grounds of a cleft palate or a club foot, and indeed they can be. Those are minor disabilities, as I know, because I have a son with a club foot. In an era of enormous support for the disabled and their families, we cannot allow this form of discrimination to persist. We must take action to review it.

Equally, we must take action to prevent any hint of discrimination against an unborn child on account of their sex. We have had much more than a hint that this is happening; we have the investigation from The Daily Telegraph. The time it took to look into that investigation—19 months—is deplorable. In his statement of 7 October about the investigation, the DPP said:

“on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.”

We are talking about conviction for a criminal offence, according to the Offences Against the Person Act 1861. What kind of message does that decision send? It sends the shocking message that authorities in this country will turn a blind eye to involvement in acts preparatory to the commission of an unlawful abortion—authorities in whom trust is vested to apply and uphold the laws made by this Parliament.

The reason the DPP gave for not proceeding with the prosecution was that it would not be in the public interest. Prosecutors have also pointed out that the issue has become sensitive and political. How can it not be in the public interest to state firmly and clearly that abortion on the grounds of a child’s sex is wrong? It is wrong morally and legally, and if the law is not sufficiently clear on this point, it is our duty as parliamentarians and politicians—I see nothing wrong in politicians being involved in this issue—to make it clear.

The grounds on which an abortion is legal have never included the sex of the child, and that is true not just in this country. The UN convention on the elimination of all forms of discrimination against women, which the UK has ratified, is a legally binding treaty in UK law. The convention recognises the right to choose the “number and spacing” of one’s children, but not the sex. International law is very clear: sex-selective abortions are not legal.

We recognise that in this country when we fully condemn China’s one-child policy, which has resulted in a disproportionate number of young men, running into the millions. The ratio of young men to young women in many parts of China is now 30:1. This country prides itself on respecting human rights, and we cannot be so hypocritical as to condemn that policy and then do nothing when such things occur within our own borders. I said that there was more than a hint that that is happening; in January 2013 I tabled an early-day motion, citing

“recent confirmation by the Department of Health that there are discrepancies in the balance between the number of boys and girls born to groups of women from some overseas countries to an extent that”—

in the Department’s words—

“‘falls outside the range considered possible without intervention’”.

The motion called on the Department of Health to put procedures in place to address the issue, and it was supported by more than 50 parliamentarians. There are a number of parliamentarians here today, but I know from the EDM alone that there are far more who support the views that have been expressed today.

There is further evidence. Dr Vincent Argent, a former medical director of the British Pregnancy Advisory Service, has been quoted as saying that the practice is “fairly widespread” in the UK; and there are data from Dr Dubuc of the university of Oxford, who has studied the issue for 35 years, suggesting that sex-selection abortions are happening with increasing regularity among certain groups in the UK because of the increasing availability of technologies to determine the sex of an unborn child. The statistics show that the practice is particularly prevalent when a third child is expected.

[The Attorney-General (Mr Dominic Grieve)]

I should explain that I have only Department of Health statistics to go on, but this may be helpful. As far as the UK as a whole is concerned, the statistics on gender balance in births fall squarely within what are regarded as acceptable norms. As to mothers who were born in other countries, there is, with only one exception, no clear evidence of such a divergence from the norm. Interestingly, the country in question is Sri Lanka and, curiously, the birth ratio for mothers born there is 99.2 male children for every 100 female children, which suggests the opposite of what my hon. Friend is talking about. There again, however, there is nothing to suggest that the ratio is outside the statistical norm.

[Fiona Bruce]

If my right hon. and learned Friend will allow me, I shall send him Dr Dubuc’s data and research, which show figures that at least need to be looked into.

I ask for not only Ministers but the British Medical Association to take action. The 2012 third edition of its guide, “Medical Ethics Today”, does not clearly prohibit sex-selection abortions. The doctors we heard of in the investigation by The Daily Telegraph clearly felt uncomfortable. I should have thought it would help the many other doctors who might feel uncomfortable in such circumstances if the BMA medical ethics committee were to take a clear stance against the discriminatory practice in question, and support practitioners accordingly. As to the reference by the Director of Public Prosecutions to the General Medical Council taking action on the investigation by The Daily Telegraph, it is worth remembering that the GMC has no powers on criminal actions and cannot prosecute breaches of the law.

Finally, in April, I presented a ten-minute rule Bill on the very issue that we are debating. It was interesting to note that there was no opposition from any Member of the House. My purpose was to raise the issue and to remind the police and Crown Prosecution Service that abortions on the ground of gender are illegal in this country. My Bill called on the Department of Health to establish procedures to record the gender of babies aborted under the Abortion Act 1967, when the sex can be determined, and to consider a review of the penalties for anyone found to have facilitated the abortion of a child because of their gender. The United Kingdom prides itself on striving for gender equality and tackling discrimination in all its forms, and any indication of that most fundamental form of gender discrimination and violence against women must surely be investigated further.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

It is a great pleasure to serve under your chairmanship, Mr Pritchard. I congratulate my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) on securing the debate.

Investigative journalism plays an important part in a vigorous and healthy democracy. The Daily Telegraph has done a very important public service in bringing these issues before us today. The debate has been a characteristically thoughtful one, as befits matters touching on the criminal law, personal health and dignity, ethics and moral issues, professional standards and the wider public interest. I am grateful to the hon. Member for Strangford (Jim Shannon), my hon. Friends the Members for Gainsborough (Sir Edward Leigh), for Totnes (Dr Wollaston), for Congleton (Fiona Bruce) and for Tiverton and Honiton (Neil Parish) and the hon. Member for Islington South and Finsbury (Emily Thornberry), who have all made contributions, and to those right hon. and hon. Members who have intervened.

The cases highlighted by The Daily Telegraph were much debated at the time of the original CPS decision not to prosecute. The terms of that debate may have given the public the impression that this case was about medical practitioners offering abortion on the basis of the gender of the child. On that basis, it may well have seemed incomprehensible that the full force of the criminal law was not being brought to bear on a practice that most people would regard as abhorrent. I certainly do and I think that everyone in this room does. But as I hope to make clear and as I hope has been made clear by the DPP’s explanation, that is not in fact what these cases are at root about.

The DPP has recently published detailed reasons for the CPS decision. I urge all right hon. and hon. Members to read his account very carefully, if they have not already done so. It is absolutely right that prosecution decisions are taken by independent prosecutors on the facts before them and free from political influence. That is what entitles the public to have confidence in those decisions. However, it is also important that the public should be able to understand the decisions and, where that is not straightforward, that prosecutors make a special effort to explain them. This was obviously such a case, and I am particularly pleased that the director has taken the time and trouble to review—I requested him to do so—the decisions personally and to set out fully the reasoning that led him to endorse the conclusion that it would not be right to prosecute.

[Mr Burrowes]

Will the Attorney-General give way?

[The Attorney-General]

In a moment; I was going to answer the two questions raised by my hon. Friend. First, the director did not make the initial decision not to prosecute, but he was consulted, as is normal in complex and sensitive cases. The answer to the second question, on whether I was consulted on the decision before it was taken, is that I was not. The case was not raised with me by the director prior to the decision not to prosecute being taken. In my view, it should have been, and on reflection, the director accepts that he should have done so. Before that leads to an inference that therefore the decision might have been different, I simply make the point that as I asked the director to review the decision completely and I had ample opportunity to consult with him before he did so, I am satisfied that the decision that has now been reached, which I will come on to in a moment, would have been the same had that process taken place in the first case.

[Mr Burrowes]

Does my right hon. and learned Friend the Attorney-General agree that in hindsight it would have been appropriate for the DPP to be involved at an earlier stage, to respond to the question raised by the shadow Attorney-General, and should not all future investigations of allegations of contraventions of the 1967 Act involve the DPP at that earlier stage and proper consultation with my right hon. and learned Friend?

[The Attorney-General]

As my hon. Friend will appreciate, the DPP himself does not under the statute have to give consent. Nevertheless, I am sure that the DPP will have noted my hon. Friend’s comments—representatives of the Crown Prosecution Service are here. It is clear to me that this is an important issue in a difficult area, which I will come on to in a moment. I trust that his comments are noted, but he will appreciate that the decisions are ultimately for the DPP, not me.

The director’s reasons speak for themselves. I am satisfied that this difficult decision was taken properly and conscientiously. The responsibility of taking such decisions is a heavy burden, which few of us would relish. I would like to take the opportunity to pay tribute to the distinction with which the current director has fulfilled an onerous and difficult series of public duties over recent years, particularly as his term of office is drawing to a close.

The hon. Member for Strangford asked whether I agreed with the decision taken by the director. I emphasise the point I made: I am clear that it is not my role as Attorney-General to second-guess the decisions of independent prosecutors. These were difficult decisions on which different prosecutors could reasonably have come to different conclusions, but I am entirely satisfied that this difficult decision was taken properly and conscientiously.

I shall say a little more by way of context. First, abortion law in this country, in my judgment, is workable, but needs to be understood. I should perhaps emphasise that the law is not framed in terms of prohibiting gender-specific abortion or indeed listing any other forms of unlawful abortion. It works, or was intended to work by Parliament, by providing for abortions to be performed safely, by qualified medical practitioners, when those practitioners judge it to be in the medical interests of the patient and where that is the course that the patient herself agrees is right. Two medical practitioners must on each occasion have formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination. That is our guarantee, as provided by Parliament, that we have a system of safe and lawful abortion provided by the 1967 Act.

[Neil Parish]

Is my right hon. and learned Friend saying that he believes the law to be correct as it is? If that is the case, why is abortion being allowed for gender selection?

[The Attorney-General]

I think my hon. Friend might misunderstand. We can have a long moral and ethical debate about the workings of the 1967 Act, as we have had in Parliament—I dare say that many in the room will express different views on the Act and all sorts of connected aspects—but that would be about an issue of policy. The question I am dealing with in this debate is whether, within the framework of what was intended by the 1967 Act, it is possible to enforce the law as Parliament intended it to be. I hope I will be able to develop that thought in a moment.

My hon. Friend the Member for Gainsborough asked about the statistics on those prosecuted under the 1967 Act. Since 2010, there have been 25 prosecutions, and he is right that none has been of medial professionals for failure to observe the terms of the 1967 Act.

[Jim Shannon]

As I asked the shadow Attorney-General, in light of the disquiet expressed by Members today and the disquiet outside the House, would the Attorney-General agree to a review of the case?

[The Attorney-General]

So far as this case is concerned, the decision is that of the CPS. For me to overturn or review somebody else’s decision in a case in which the decision does not fall on me would be wrongful interference in the independence of the prosecution and its discretion. As far as I am concerned, the function I have has been performed, in that there has been a review by the DPP of his decision and he has been able to explain it fully in the explanation he has provided. As I have already indicated, I do not consider anything to be in any way improper or unreasonable in that explanation or in how he has approached the matter. If the hon. Gentleman will let me develop my argument, he may understand why that is the case in a moment.

The question in this case is not about proving whether gender-specific abortion was being offered on demand. It was about whether the doctors had done what the law requires, which is to reach an opinion in good faith about the consequences for the patient of continuing with or terminating a pregnancy. I appreciate that abortion gives rise to strong views based on ethical and philosophical differences, and I have no doubt that it will continue to be the subject of much public debate, but the issue for the prosecutor is the law as it stands.

[Neil Parish]

Is that not semantics? Is the Attorney-General saying that doctors are not prosecuted because they took the decision that abortion due to gender selection was all right in theory because the mental health of the mother might be affected or based on some other grounds that are acceptable under the 1967 Act? That seems to be pure semantics.

[The Attorney-General]

I am sure that my hon. Friend has had an opportunity to read the full note produced by the DPP. It sets out in detail, which I do not have time to go into this afternoon, the evidence in the case of each doctor presented to the CPS. My hon. Friend will appreciate that it is important that the evidence in each case is looked at separately. The DPP goes through it in detail and explains that the issue is not gender-specific abortion. If somebody says to a doctor without more ado, “I want an abortion on gender-specific grounds,” and the doctor says yes, the case might be a clear-cut matter to prosecute because the grounds fall clearly outside the ambit of the 1967 Act. The section of the Act with which we are concerned is about the physical and mental health of the woman. It is about good faith, in that it is for the doctor to satisfy themselves that any abortion falls within the criteria. If my hon. Friend looks at the matter in detail, he will see why the director came to the conclusion he did, which I will address, but in briefer terms.

The CPS concluded, with some difficulty, that there was just enough evidence available in the cases to bring the good faith of the doctors into issue. I think that the hon. Member for Islington South and Finsbury was wrong when she said in her final statement that the position had changed. The DPP’s statement of reasons says, nevertheless, that the evidence was not strong in either case and the prospects of conviction would not in his judgment have been high on the facts as they appeared. The matter does not rest there. Even in a case that just about passes the evidential threshold, the CPS is obliged to consider whether a prosecution would be in the public interest. That is one of the tasks that we require it to do. The fact that an evidential threshold is passed—a point raised in the debate—does not mean that a prosecution has to, or indeed should, follow.

The decision was that prosecution did not pass the public interest threshold. It is that aspect of the decision that raises wider issues of public policy, some of which we have debated today, which I accept are an entirely legitimate topic of debate. The issue, as I see it, is this. Because the law makes the difference between lawful and unlawful abortion subject to a medical test, doctors have to be able to carry out that test on a case-by-case basis according to proper medical standards of care, skill and judgment. That is, effectively, what the test of “good faith” in the 1967 Act means. Doctors are required by law to make such decisions to a proper professional standard. If a question arises about whether a doctor has done so in any given case, a law enforcement agency must look to approved medical practice for assistance in identifying the proper standard. The same thing applies in virtually every case involving professional standards. Dare I say it, it would apply even in the case of a plumber who carried out some work that led to a catastrophic outcome.

[Sir Alan Beith]

It would surely not be right in such circumstances merely to demonstrate that other plumbers engaged in conduct that did not meet professional standards, and no more would it of doctors.

[The Attorney-General]

I reassure my right hon. Friend that that is certainly not the case. Ultimately, in any case, the jury decides, not the experts. One would normally expect a jury to be given some indication of the professional standards expected in a profession—there may even be rival professional views about what the standards should be—in order to help it decide.

Such a problem might not arise in an extremely clear-cut case. We might imagine a case in which a doctor behaved in a way in which no reasonable practitioner would behave, for example by arranging a medical abortion for a patient about whom he or she knew nothing and whom he or she had never met or spoken to. In any other circumstances, however, the CPS would need, and would expect to be able, to refer to medical consensus to determine whether a proper professional approach had been taken.

When they are looked at in the kind of detail considered by the prosecutor, the cases that we are debating are not extreme ones in which the doctors behaved as no reasonable practitioner would behave. Complicating factors were raised by both the patients and the doctors, who subsequently had to take the decisions. There were, as we have discussed, no detailed professional rules or step-by-step guidelines telling doctors how to take such decisions; the matter was left to general professional standards and ethics. The CPS, therefore, had no detailed consensus to help it to evaluate the matter.

To prosecute would have been to ask a jury to decide what steps a doctor should take. Juries take difficult decisions robustly, and sometimes they have to find their way through conflicting medical evidence. Is it right or fair, however, to ask a jury to arbitrate on a question of medical standards and ethics on which the profession has not published a detailed consensus, and on which a great deal turns for both doctor and patient? The CPS concluded in the recent cases that it would be contrary to the public interest to proceed.

Those who have the relevant policy and professional responsibilities are, no doubt, reflecting on the conclusions to be drawn. The Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), is present for precisely that reason. As the House will appreciate, these are not my responsibilities.

[Mr Burrowes]

I recognise that in such cases, because of the level of uncertainty, it is questionable whether a prosecution would serve the interests of justice. When more certainty has been achieved through the publication of guidance, will the Attorney-General undertake to review the matter and consider whether further guidance is required to provide clarity on prosecution?

My supplementary question is to ensure that the Attorney-General does not get off the hook without commenting on another issue. The CQC has provided evidence of 14 hospitals where—forget “good faith”—doctors were not even present when forms were signed. Surely the Attorney-General must ask why no prosecutions occurred in such cases, which go way beyond questions of guidance. They are malpractice and a flagrant abuse of the Abortion Act 1967, and they must lead to prosecutions.

[The Attorney-General]

I hope I may be able to reassure my hon. Friend. On the second matter that he raises—it is not germane to one of the cases, although it was to another—as he knows, the evidence revealed that the pre-signing of forms was quite widespread. I understand that that practice has now been stopped, and that clear guidance has been issued as to its undesirability. That is a policy issue, and I have no doubt at all that as a result, the requirements set down by professional standards have already been clarified.

I turn to the more general point. There are two ways in which we can move forward. We might take the view that the current situation is, overall, a satisfactory one, in which professional medical discretion, which must inevitably be relied on, is left at large, with the law enforcement agencies acting as a back-stop for the most egregious cases that flout any conceivable proper standards. The other view, which I understand that the Department of Health has accepted, is that such a situation allows law enforcement far too residual a role and that the balance needs to be redressed. The law enforcement agencies will need clearer and more specific guidance on how to distinguish between desirable and undesirable professional practice in making and recording decisions on the termination of pregnancy. I greatly welcome that, and I have no doubt that it will make the task of prosecutors much easier.

[Mark Durkan (Foyle) (SDLP)]

The Attorney-General has rightly said that we should not second-guess a prosecutor, the professional judgment of a doctor or the position of a jury when taking evidence. We can, however, second-guess ourselves as legislators. During the passage of the Human Fertilisation and Embryology Act 2008, we were assured that gender selection would not be permitted as a ground for abortion, and that a proposed amendment to that effect was redundant. I am sure that that was said in good faith, and the amendment was withdrawn on that basis, but do we not have cause for consideration in that area?

[The Attorney-General]

It is quite clear from a reading of the 1967 Act that gender selection alone is not grounds for the termination of a pregnancy. The debate has highlighted policy issues, which Parliament can debate further if it wishes, about how the question of gender selection may carry some weight in respect of, in particular, the impact on a woman’s mental health of continuing with a pregnancy. That is inherent in the drafting of the legislation, which places a great burden of responsibility on the medical profession to carry out a specific assessment, under the subsection that, as we know, is the most relied on as the justification for a termination.

It would be wrong of me, in the course of this debate, to start re-examining something that is a policy issue for Parliament. I have done my best to answer the question, which is whether the law as it stands is workable and can be made better. I have already indicated that if, as I understand to be the position, the General Medical Council produces such guidelines, they will be of immeasurable assistance in providing a benchmark for how doctors are expected to make the assessments required under the 1967 Act.

The Director of Public Prosecutions has informed me that he would be more than happy for his officials to comment on the practicalities, from a prosecutorial viewpoint, of any amended arrangements, should that be thought necessary. I can see that that might be of great practical value. I hope that I have been able to provide hon. Members with some reassurance.

Concurrent Jurisdiction

Dominic Grieve Excerpts

Wednesday 17th July 2013 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

The Director of Public Prosecutions (DPP) has today published the final guidelines to prosecutors on decision making in certain cases involving concurrent jurisdiction. The guidelines, which take immediate effect, follow a recommendation in the report of the review of the UK’s extradition arrangements by the right hon. Sir Scott Baker that there should be more transparency about the principles that are applied by prosecutors in this jurisdiction when determining whether criminal proceedings should be brought here or in another jurisdiction.

The guidelines were issued on an interim basis and were the subject of a consultation exercise that ended on 31 January 2013, The interim guidelines were reviewed in light of the comments received and to ensure that they were consistent with the forum bar legislation that was approved by Parliament earlier this year. The guidelines provide guidance for prosecutors in cases where criminal investigations have been commenced in more than one jurisdiction and involve suspected criminal conduct that crosses international boundaries. The CPS recognises that decisions made in accordance with these guidelines will form the basis of consideration for the courts when applying the forum bar.

The director of the Serious Fraud Office has indicated that his prosecutors will also consider themselves bound by this guidance.

Copies of the guidelines will be placed in the Libraries of both Houses.

R v Mouncher and Others (Disclosure Handling)

Dominic Grieve Excerpts

Tuesday 16th July 2013 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

On 26 January 2012, the Director of Public Prosecutions, Keir Starmer QC, announced that he had asked Her Majesty’s Crown Prosecution Inspectorate (HMCPSI) to consider the way in which the prosecution team conducted the disclosure exercise in the case of R v. Mouncher and others, following the discontinuance of the trial on 1 December 2011. The HMCPSI’s independent review has examined and made findings on the following matters:

1. Whether the prosecution team (CPS and counsel) approached, prepared and managed disclosure in this case effectively, bearing in mind the history, size and complexity of the investigation and prosecution;

2. Whether the CPS and prosecuting counsel complied with their disclosure duties properly in relation to the extensive material generated in this case;

3. Whether the prosecution team CPS followed all relevant guidance and policy in relation to the disclosure in this case; and,

4. To make such recommendations as it feels appropriate in light of the examination and findings set out above, including, if appropriate, recommendations about CPS policy and/or guidance and CPS arrangements for handling of similar size and complexity cases.

The Director of Public Prosecutions (DPP) has today published the findings of this review in full without any alteration or redaction and a copy has been placed in the Libraries of both Houses. The full review is also available online at www.cps.gov.uk.

The review concludes that despite the determination and hard work of the prosecution team (CPS staff and counsel), the approach to disclosure did not consistently meet the necessary standards. It notes that this was a very large case of about a million pages yet importantly also highlights that a great deal of unused material was disclosed to the defence and the number of disclosure decisions questioned at court represented a very small proportion of the decisions made.

The significance of the failure to disclose notes of police and CPS contacts with key witnesses was substantial. Other errors were less significant and some criticisms of the prosecution were unwarranted. While many of the mistakes or oversights did not disadvantage the defence or were capable of correction—and corrected—during the trial, their cumulative effect enabled the defence to undermine the confidence in the disclosure process.

The review also found some errors of principle—in particular, the prosecution took too narrow an approach to the disclosure test. The narrow approach was a failure of case management, particularly the lack of supervision of disclosure counsel’s work.

Finally, the review concluded that there was no evidence that prosecutors or police disclosure officers made decisions for any improper reason. Some mistakes were made in applying guidance but these represented a very small proportion of all the disclosure decisions that were made and many were discovered and corrected as a result of quality assurance exercises. More detailed conclusions can be found within the report including evidence of good practice.

The review recommends that more explicit guidance be included in the Prosecution Team Disclosure Manual including meetings with victims and quality assurance exercises as well as emphasising early CPS engagement with the police and how to consider the merits of an apparent defence.

The review also recommends the prosecution should prepare a written summary of the disclosure processes to be adopted including the rationale for the parameters used when applying the disclosure tests as well as the treatment of secondary source and duplicate material. The summary can then be served on the defence and the court. Finally, recommendations are made regarding the development of searchable IT systems to assist handling of disclosure in large and complex cases.

The DPP accepts in their entirety the findings and recommendations set out in the review. In January 2012, the DPP also ordered a complete overhaul of the CPS approach to modernise disclosure in serious and complex cases and since 1 March 2013 a new regime has been in place. This was designed to complement and support the Disclosure Case Management initiative launched by the senior presiding judge, Lord Justice Gross, on 3 June this year,

HMCPSI worked alongside the IPCC on this matter and their review is also published today.

Social Media Prosecution Guidelines

Dominic Grieve Excerpts

Thursday 20th June 2013 Written Statements

[The Attorney-General (Mr Dominic Grieve)]

The Director of Public Prosecutions has today published his final guidelines for prosecuting cases involving communications sent via social media. This follows an earlier public consultation exercise on the interim guidelines, details of which were announced in my written statement to the House on the 19 December 2012, Official Report, column 101WS.

The final guidelines take account of comments received in the consultation and the experience of recent prosecutions. They have been amended to clarify additional evidential and public interest considerations relevant when prosecutors assess whether a prosecution is required in accordance with the code for Crown prosecutors.

The overall approach of the guidelines remains the same, making a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment or breach of court orders on the one hand, and other communications—for example, grossly offensive communications—on the other. The first group will be prosecuted robustly. Whereas cases in the second group, which meet the evidential stage, are unlikely to require a prosecution in the public interest if the sender expresses genuine remorse, the communication is swiftly removed, it is not intended for a wide audience or does not obviously go beyond what could conceivably be acceptable in a diverse society which upholds and respects freedom of expression.

Copies of the final guidelines have been placed in the Libraries of both Houses.