Robert Powell

Debate between Dominic Grieve and Jonathan Evans

Tuesday 12th March 2013 Westminster Hall

[The Attorney-General (Mr Dominic Grieve)]

It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate my hon. Friend the Member for Cardiff North (Jonathan Evans) on securing this debate.

My hon. Friend outlined the sad and unhappy history of this matter. At the outset, I acknowledge that it is clear that Mr Powell and his family feel, with justification, very let down by how this matter has been handled.

My hon. Friend’s concerns appear to fall into two categories. The first relates to the decision of the Crown Prosecution Service not to bring any criminal proceedings arising from the circumstances of Robbie Powell’s death. The second is whether, in light of the Crown Prosecution Service’s conduct of this matter, there should be a full public inquiry.

First, on the decision not to prosecute, it is right that Parliament holds public services to account, including the Crown Prosecution Service, for which I am ministerially accountable here. However, I have to preface my remarks with a note of caution. This debate cannot be the place to determine the guilt or innocence of those suspected of criminal activity, and it is not the place where I can engage in detailed analysis of the complex issues that this case involves. I must also be realistic about what I can achieve in the short time available to me in this debate. I do not make those remarks lightly or to brush the matters aside. I know that this is a case where there have been allegations of record falsification and cover up, and it would only fuel those concerns if I were to refuse to engage with them. So I will engage with them, to the extent that I can and that it is possible to do so in this Chamber.

The CPS reviews of evidence in the 1990s were in relation to evidence gathered during a criminal investigation by Dyfed-Powys police, which was later found, as my hon. Friend said, to be institutionally incompetent. It is hardly surprising that decisions made by the CPS on the strength of evidence gathered by an institutionally incompetent criminal investigation may be open to criticism. I will therefore focus on the review of the evidence conducted by CPS in 2003, which was based on police investigations conducted by an independent team supervised by the Police Complaints Authority.

The 2003 evidential review considered whether any of the medical professionals involved in the case could be prosecuted for gross negligence manslaughter. It also considered, in relation to the amended medical records and a backdated referral letter, whether proceedings could or should be brought for forgery and/or perverting the course of justice. That review encompassed a lengthy consideration of papers over a number of months and meetings with officers, initiating further inquiries and consulting the various medical and forensic experts in the case. A senior and eminent Queen’s counsel was instructed by the CPS throughout.

The decision at the end was that no prosecution could be brought. That decision was taken on 14 March 2003. The family were informed by letter, which explained that the CPS intended to meet them to explain the background to the decision. Ahead of that meeting, the CPS and Dyfed-Powys police met the General Medical Council to determine what might be required to initiate a GMC inquiry.

The meeting with the family took place in early April 2003. It was explained at the meeting that this was an extremely difficult decision, based on a complicated set of facts, involving myriad differing medical opinions. The decision had to consider the impact of the earlier CPS decisions not to prosecute and the impact of the passage of time on the fairness of the prosecution, including matters such as the availability of evidence for both the prosecution and defence.

The letter of 17 April 2003, to which my hon. Friend refers, was sent to explain that decision in writing, following the meeting with the Powell family. I am afraid that I do not agree with the description of the letter as “a self-serving document”. Its purpose was to assist the Powell family in understanding the decision making in an extremely complicated case and to set out fairly the Crown Prosecution Service’s evaluation of what was and was not possible.

In 2004, an inquest was finally held in this case, after the then Attorney-General, Lord Goldsmith, consented to an application being made to the High Court for an order that it should take place. Following the inquest, Mr Powell complained that a number of the doctors had committed perjury during the inquest. That was again considered by the same reviewing lawyer and senior Queen’s counsel. In respect of one of the doctors, such a prosecution would have met the same problems as had been highlighted in 2003; in respect of the other doctor, the case was significantly weakened by the medical evidence heard during the inquest. The CPS decision not to prosecute for perjury and the reasons behind it were also explained to the family, in a letter dated 8 December 2005. It was, of course, open to the Powell family to ask for the CPS decisions not to prosecute in 2003 and 2005 to be reviewed within the CPS, or to institute judicial review proceedings.

It remains the case that such a review would still be available. I emphasise that I am not, in saying that, suggesting that the review could possibly come to any different conclusion, because I have no grounds for making that suggestion. I hope my hon. Friend will forgive me for saying that that is all I can say on that aspect of the matter in this context.

[Jonathan Evans]

Before the Attorney-General moves away from the 2003 letter, will he respond to my points on the aspect of the letter dealing with unqualified assurances that there would be no prosecution? It is one thing to tell someone that, on the basis of the current evidence, there will not be a prosecution; it is quite another for the Crown Prosecution Service to explain a decision not to prosecute on the basis of previous unqualified assurances that no prosecution would ever take place.

--- Later in debate ---

[The Attorney-General]

I totally understand my hon. Friend’s point. My difficulty is that I am not in a position in this debate to analyse the assurances that were given, their exact terms or their effect. The CPS will have to consider that. What I can say is that, generally speaking, although it is true that there may be exceptional circumstances in which an assurance that a prosecution will not be brought can subsequently be ignored and overridden, and would survive an abuse of process application if a trial were ever to take place, such an assurance will be a powerful argument if someone wishes to argue that there would be an abuse of process if a prosecution were to be brought.

In any event, the abuse of process issue in respect of assurances that no prosecution would take place is only one element in the equation, as I hope I have been able to explain. It is not the sole argument; there are also evidential issues, and I do not think such things can be considered separately. I am afraid that is the best explanation I can give in the time available.

I know my hon. Friend has previously raised with me instances in which earlier decisions not to prosecute have been ignored with prosecutions being brought later, which I accept. I emphasise that such assurances are not an insuperable or absolute bar, but they are without doubt a major obstacle if any further prosecution is to take place.

[Jonathan Evans]

My final point is that it is one thing to say that, back in 1996, an unqualified assurance was given and that it was sufficiently important for it to appear in that letter, but in 1996 a letter was sent to a Member of Parliament saying that the CPS remained open to further evidence. Does my right hon. and learned Friend agree that that should at least be considered?

[The Attorney-General]

I have no reason to disagree, but, equally, I have no reason to disagree with the position that the CPS adopted in 2003. That really is as far as I can go on the matter. I have explained that the issue can be reviewed further, but, for the reasons I have already given, I have no reason to think that it will necessarily be a productive avenue. If that is something the family want, it is something they can ask for.

I am conscious that I have very little time, so I will explain the Law Officers’ approach to the public inquiry. The question was most recently considered by the former Solicitor-General, my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), in the summer of 2010. Prior to that, it was considered by Lord Goldsmith in early 2007.

The starting point for those Law Officers who have previously considered the case is that a public inquiry is unnecessary, not because the matter is not serious—the matter is undoubtedly extremely serious—but because issues surrounding the circumstances of Robbie’s death have already been the subject of intense scrutiny. In 2003, there was an inquiry into Dyfed-Powys police’s handling of the case by Avon and Somerset constabulary. In 2007-08, the Independent Police Complaints Commission conducted two further investigations into complaints relating to Dyfed-Powys police. Additionally, the Welsh Assembly Government commissioned their own report, published in February 2012, into the handling of the care and treatment received by Robbie Powell. It is difficult to see that a public inquiry would uncover anything that has not already been uncovered or would identify lessons to be learned that have not already been identified.

Although it was the view of Lord Goldsmith and my hon. and learned Friend the Member for Harborough that a public inquiry is unnecessary, they both agreed that, if the Welsh First Minister maintained that such an inquiry needed to be established, they would not stand in his way provided that any inquiry encompassed the actions of both the police and the CPS. The main concern was that a public inquiry would be seriously impeded if it were not able to consider the actions of all those involved. It would serve no purpose for some participants in the Powell case to be within the scope of the inquiry only for others to be left out.

The Home Office took the view, however, that a public inquiry into the activities of the police was not necessary given the number of existing inquiries into the police arising from the case. The Home Office accordingly now takes the view that any new inquiry into the actions of the police is unlikely to produce any fresh information about the role of the police in this tragic case. For that reason, the Home Office is not convinced that there is a need for a joint inquiry. The decision is for the Home Office, but from the information available to me as a Law Officer, I have no reason to dispute the Home Office’s view.

Had the Home Office agreed to an inquiry, it would have been a further condition of the Law Officers’ consent that the inquiry did not extend to question the correctness or otherwise of a prosecutorial decision. That is because it is a fundamental constitutional principle that decisions by prosecutors are taken independently of the Executive and are free from political influence. If such decisions are reviewed anywhere, they have to be reviewed in a court of law. Any other approach risks the perception that the Government are holding the threat of an inquiry over the head of prosecutors to push them into making prosecutorial decisions in a way more to the Government’s liking.

Of course, the Home Office is right: this very tragic case has been the subject of a large number of reviews that have undoubtedly identified areas where things could have been done much better. It is important that the recommendations of those reviews are implemented.

Robbie Powell’s death was almost 23 years ago, and the passage of time continues to run. The concerns expressed by Lord Goldsmith and my hon. and learned Friend the Member for Harborough about whether a public inquiry could ever be appropriate in this case perhaps apply with greater force today than they did in 2010.

I can conclude only by expressing my sympathy for the family.