Criminal Cases Review Commission (Information) Bill

Dominic Raab Excerpts

Friday 5th February 2016 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

At the outset, may I add my condolences to the family of the hon. Member for Sheffield, Brightside and Hillsborough, and say that we feel his loss in all parts of this Chamber?

I add my congratulations to those of others to my hon. Friend the Member for Hazel Grove (William Wragg), who, in getting the Bill to this stage, has achieved no mean feat. Many private Members’ Bills fall long before they reach this point, and he has shown considerable tenacity, sagacity and modesty in securing its passage to this stage—[Interruption.] But not brevity, he tells me—you can’t have it all. He has done so within nine months of being elected to this House, which is also no mean feat.

I thank the other hon. Members who have demonstrated their support for and interest in this Bill. I note that my hon. Friend has managed to amass an interesting range of sponsors, from the Leader of Her Majesty’s Opposition to the Conservative chair of the 1922 committee. I am not sure whether that is entirely unprecedented, but it is certainly a rare and potent cocktail of parliamentary support, and I congratulate him on that.

In short, the Government support the Bill. It may be modest in size, but we believe it will make a significant contribution to the effective workings of our criminal justice system. When we think about justice, we usually think about the police, the courts, or perhaps the judges. We rightly focus on the victims and the witnesses, and on ensuring that justice is meted out swiftly and surely. Perhaps we do not spend enough time thinking about what happens when things go wrong. That is mercifully rare, but it does happen on occasions that someone is convicted who, it transpires, was innocent all along. My hon. Friend was absolutely right to talk about the impact of miscarriages of justice on individuals—the human toll. He put it incredibly well. British justice should be firm, but it should be fair, and that is what this Bill is all about.

In the 1970s, as my hon. Friend pointed out, there were some very high-profile miscarriages of justice. He spoke about them, and I do not need to repeat what he said. Those cases exposed the weaknesses in the criminal justice system at the time, and that led to the establishment of a royal commission on criminal justice in 1991. As hon. Members will recall, the commission’s remit included considering whether changes were needed in the arrangements for considering and investigating allegations of miscarriages of justice when all the appeal processes have been exhausted. The commission’s recommendations led to the Criminal Appeal Act 1995, which established the Criminal Cases Review Commission.

The existence of the CCRC ensures that those who have been wrongfully convicted have someone to turn to who will thoroughly investigate and reconsider their case. If there is a real possibility that their conviction would not be upheld, the commission will refer their case to an appeal court. The commission consists of 11 commissioners, one of whom serves as chair. They are dedicated and experienced people who deserve our support and encouragement. As I say, its purpose is to investigate cases in which it is alleged that the system has gone wrong and a mistake has been made. That is no easy task for the commissioners. It can involve trawling through reams of paperwork and great swathes of historical evidence. The ability to obtain that evidential material is clearly an essential tool in the commission’s work; I think it is the key to its success.

Currently, the commission uses the powers set out in section 17 of the Criminal Appeal Act 1995 to require public bodies to give it documents or other material that may assist it in discharging its functions. Public bodies that the CCRC often deals with include the police, the NHS, councils, Whitehall Departments and the Crown Prosecution Service. Provided that the section 17 power is exercised reasonably, the CCRC’s ability to obtain information from the public sector is not restricted by any obligation of secrecy or limitation on disclosure. For example, it extends to information that may be relevant to national security and to personal information held by public bodies.

The CCRC does not, however, have the right to obtain the same information from private organisations and individuals. As we have discussed throughout the passage of the Bill, and as my hon. Friend pointed out, that can cause real issues in some cases, albeit a small number. There is no doubt that that has limited the commission’s actions and caused unnecessary delay in some of the reviews of cases it has undertaken. Obviously that is not just unfair but a waste of its resources.

When documents relevant to a particular investigation are held by the private sector, or indeed a private individual, the commission relies on voluntary disclosure. Although voluntary disclosure is not uncommon—most businesses want to try to do the right thing—organisations sometimes claim to be unable to provide the CCRC with the relevant material, perhaps because of a statutory restriction on the disclosure. Even when voluntary disclosure is made, it can often take protracted negotiation, which itself causes lengthy and expensive delays in the review process. As my hon. Friend has said, let us not forget the impact that that has on innocent people, particularly innocent people who are still in prison. The delay has a very real human cost.

The situation under the current legislation stands in contrast to the Scottish Criminal Cases Review Commission, which, when it was established, was granted far wider-reaching powers under the Criminal Procedure (Scotland) Act 1995. The Scottish body has a similar function to that of its counterpart in England and Wales, to investigate miscarriages of justice in Scotland. However, it was established from the outset with powers to obtain material from both public and private sector organisations. It is a shame that there are no Members who represent Scotland present to hear us pay full tribute to the Scottish legal and justice system.

The Bill’s insertion of a new section into the Criminal Appeal Act 1995 is very welcome. It means that the CCRC will be able to obtain a court order requiring a private individual or private organisation to disclose a document in their possession or under their broader control. The court will be able to make such an order only if it thinks that the document or other material may assist the commission in the exercise of its functions. We are not talking about licensing or authorising fishing expeditions.

The involvement of the court is an important safeguard in the process. The individual or the company from which any material is requested will be able to put their case to the court if they think that the information either needs to be maintained for confidentiality or should not be disclosed. There are safeguards for documents that are, for example, commercially sensitive or subject to legal privilege. Clinics may want to safeguard personal medical records whose disclosure could be detrimental to the patient or patients concerned, and journalists want to protect their sources. All such things can be catered for in the process.

In short, there may be a whole range of circumstances where it is justifiable and appropriate that documents or other material remain confidential. The Bill provides a clear process for the courts to consider fully the circumstances of any particular case and to make an informed, sensible decision about how to proceed.

Once a court order has been made, failure to disclose the documents will be punishable by contempt of court. That is a significant sanction. The maximum penalty for that in the Crown court is two years, or a fine, or both. The penalty in any individual case will be a matter for the judges and the court, within the maximum limit. We think that is right and appropriate. Of course, it is not possible to imprison an organisation if it does not comply, but a fine has significant potential to damage a company’s reputation as well as to hit it in the pocket, and we think that will be a considerable deterrent. We also think that the prospect of being taken to court will probably be enough to persuade most companies to provide any relevant documents and material, and to do so quickly. Where a miscarriage of justice is concerned, it is even more important that we brook no delay in putting it right.

One reason why the powers are needed now is that more and more services that used to be in the public sector are provided wholly, or partly, by private companies. It was good to hear that the Opposition have no dogmatic objection to that. A good example of where that works effectively is the work that used to be done by the Forensic Science Service. As hon. Members will imagine, a key part of the commission’s work involves re-examining and re-testing material obtained from crime scenes. Much of that material is now initially tested and held by private companies.

When it comes to forensic evidence and samples, an important power of the commission under the 1995 Act is to request that samples are retained for later examination and testing. At present, such a request can be made to public bodies, but not to private individuals or companies. That is a good example of the situation that the Bill is designed to rectify. Documents that are in the possession of a private company might be destroyed, inadvertently or otherwise, and not be available for later examination by the CCRC. The Bill will ensure that the commission can request that the court orders a private organisation to retain documents or other material, which will reduce any risk that the company might discard or unintentionally destroy important material that the commission might need later.

Some private companies already have a policy covering what they retain, and they may be restrained by lack of space and facilities. The commission needs a mechanism to ensure that documents are retained in spite of any such policy. We think it will continue to be relatively rare for a company to intentionally destroy documents that later prove to be necessary in an investigation by the commission, but it is important that the powers in this Bill exist for future such contingencies.

We should, of course, acknowledge that the great majority of private individuals approached by the commission comply voluntarily. Cases in which organisations or individuals refuse to release documents are, thankfully, rare, but some simply refuse to assist. As with witnesses who are reluctant to come forward, there may be many reasons for that refusal. Some just cannot be bothered, others may be scared of reprisals—for example, where a case involves gangs—and others may be hostile to the criminal justice system in general, or to the commission.

We believe that the powers that the Bill gives the CCRC will make cases of non-assistance much rarer. The backstop of a court order will make it more likely that individuals and organisations will comply fully and without delay when approached by the CCRC. That is certainly the case in Scotland.

As we have considered what the Bill is designed to achieve, we have been mindful of the recommendations made by the Select Committee on Justice following its investigation of the matter during the 2014-15 Session. I will not go through all the points that it made, but the Justice Committee clearly felt that there was a need to act in this area. It argued:

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

There appears to be cross-party agreement in the House to that effect. The Committee recommended that the commission should be able to apply to the court, and that important safeguard is in the Bill, so the Bill fulfils that recommendation exactly.

The Secretary of State for Justice wants a justice system that is firm but fair, and which delivers the best possible outcomes and commands the confidence of the public. It is clear from all the speeches, particularly that of my hon. Friend the Member for Hazel Grove, that the Criminal Cases Review Commission has a pivotal role to play in ensuring that the criminal justice system delivers firm but fair justice. I think the whole House agrees about the importance of the commission’s role in performing independent investigations, and that, as it does so, it should have all the information-gathering powers it needs. The Bill is an important, though modest and incremental, addition to those powers.

For all those reasons, the Government are very supportive of the Bill. The powers are appropriate, and the Bill’s terms will ensure that the powers are exercised proportionately and appropriately. The involvement of the courts will ensure that we get the right balance between confidentiality and the broader requirements of due process and justice. I think I will be joined by many colleagues—indeed, I hope by the whole House—in welcoming and supporting the Bill, commending my hon. Friend and wishing the Bill a safe, secure and swift passage in this House and through the other place.

Question put and agreed to.

Bill accordingly read the Third time and passed.