Criminal Cases Review Commission (Information) Bill

Lord Beith Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, what a privilege it is to follow the noble Lord, Lord Ramsbotham, and to see a change that the committee I chaired recommended only a year ago being implemented. We are grateful to have his authority in taking the Bill through this House. I record also my appreciation of Mr William Wragg MP for taking the Bill through all its stages in the House of Commons, and I thank Ministers for the support they have given the Bill. February has been rather a good month for the committee I used to chair, with the Supreme Court successfully addressing joint enterprise—another of the issues we brought forward—and redefining the law very helpfully.

The chairman of the Criminal Cases Review Commission, Richard Foster, said in evidence to the Justice Committee that,

“you can be confident that there are miscarriages of justice that have gone unremedied because of the lack of that power”;

namely, the power to compel the disclosure of material from private organisations. That was a pretty serious statement. The Criminal Cases Review Commission exists to remedy miscarriages of justice. We know they occur and we know how wrong it is that someone should serve a long term of imprisonment or have hanging over them a strong sentence for the rest of their lives for something they did not do.

Of course, the problem has become more acute, as the noble Lord, Lord Ramsbotham, pointed out, because a number of services that used to be in the public sector are now provided by the private sector or the non-governmental sector, such as the forensic science service and significant numbers of probation and prison services. Interestingly, in evidence to us the CCRC cited the fact that there was a large charity, mainly publicly funded, from which it had proved extremely difficult to obtain material that the commission believed it needed to deal with a case. Then there is a wider range of private sector organisations—transport companies, commercial suppliers, CCTV operators—which may have material that is necessary to establish whether a case should go to the Court of Appeal. These bodies can all be and are approached on a voluntary basis and in most cases co-operation is secured on a voluntary basis, but without some ultimate sanction we will continue to have a very serious problem.

The kind of material that the commission seeks can be crucial in surmounting the “real possibility” test. One reason the Justice Committee reviewed the work of the CCRC was that there was a deal of frustration about cases which do not get past the CCRC—people who believe they are innocent—but the CCRC does not take to the Court of Appeal cases which it does not believe the Court of Appeal will consider justified to bring forward, such as cases in which there is no new evidence. The “real possibility” test is applied. The new evidence may be in the form of material which can be verified only if the kind of information referred to already is obtained from private organisations.

That being the case, and it being an anomaly, we may wonder why it has taken so long to put it right. The usual argument was about the lack of a legislative vehicle, which I found particularly unpersuasive when we have had about two criminal justice Bills every year for as long as I can remember. The chairman of the commission said of that phrase that it,

“is something that well-meaning officials have been telling us since 2006”.

I am glad to say that wiser counsels have now prevailed. The Government have given assistance to the Bill and support for it is widespread.

There are some questions on which I hope the Minister can help us when he contributes to this debate. One that has been put to me is: are there sufficient safeguards for information to be protected when there is another principle at stake, such as legal privilege, medical information which would be damaging to the patient without materially assisting the appeal case, or journalists’ sources? That issue was raised with my noble friend Lord Lester of Herne Hill, who cannot be here this morning. He passed on to me a letter from the News Media Association, which wrote to one of the Justice Ministers, Dominic Raab, on 16 February about this. At Third Reading in the Commons, Mr Raab said there are “safeguards”; I presume that he was relying on the fact that a Crown Court judge, upon whose authority the disclosure is to take place, would certainly have in mind proportionality, necessity and a long-established understanding of the importance of confidentiality in some of the spheres that I have mentioned.

A further point is that where disclosure to the CCRC is found to be necessary, we also rely on the commission’s care in the handling of documents. Its record in that respect is very good. In evidence, the commission told us that security and intelligence organisations, which have every reason to safeguard confidentiality, co-operated with the commission because they felt safe that its document-handling procedures were good enough.

I should add that some recommendations which the Justice Committee made do not feature in the Bill. One was a provision for timely compliance in the public sector, where there is quite a lot of variation. Requests made to the courts have 92% compliance with the timetable but in local authorities it was only 67%, according to the evidence that they gave us. The Government wanted to see more evidence from the CCRC before they would be convinced that this provision was needed. The ball is therefore in the CCRC’s court to demonstrate whether it has been able to secure an improvement in that sector or whether, at some future point, we need to give attention to that.

Secondly, the Government agreed with our recommendation that the CCRC should develop a system of feedback so that all parts of the criminal justice system get a better understanding of how and why miscarriages of justice take place. The Government offered to assist and facilitate this process, which is obviously sensible. After every major miscarriage of justice case we all say, “This really mustn’t happen again—we must look at the kind of factors that led to it happening”. Indeed, the setting up of the CCRC followed just such a reaction. Does the Minister think that progress in getting feedback is happening? I hope that he will encourage it. It does not need to be in the Bill but it is important.

The third thing that the committee recommended was that the CCRC should have a significant addition to its resources. Of course, we made that recommendation when securing more resources for any public body was particularly difficult. The CCRC has had to live without any significant uplift to its resources but, in the context of the Bill, one has to ask: given that some more cases will probably be pursued because access is obtained to disclose material, will the commission have the resources to enable it to do that?

Although there were other recommendations, as I have mentioned, the recommendation which the committee believed was so urgent and overdue that no criminal justice Bill should pass through Parliament without its inclusion was the one which this Bill addresses. We now have the opportunity to put that matter right.