Criminal Cases Review Commission (Information) Bill

Lord Falconer of Thoroton Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, like everybody else who has spoken in this debate, we on this side of the House warmly welcome the Bill and will give it every support. We hope it gets on to the statute book as quickly as possible. I pay tribute to the noble Lord, Lord Ramsbotham, both for his support of the Bill and for the clarity with which he explained it to us. I also pay tribute to Mr Wragg in the other place, who promoted it through all its stages and to the noble Lord, Lord Beith, who drew attention to it when he was the chair of the Justice Select Committee in the other place—all bearing fruit very quickly. I also pay tribute to the Government, who have unreservedly supported it throughout.

On one view, the Bill is quite a small change, but it is a quite important change. Mr Selous in another place identified a number of examples where it would be important: first, where the issue was whether a complainant in a sexual assault case had been paid by a media organisation; secondly, where a bank could give evidence in relation to payment; thirdly, where a shipping company could give evidence about when material came into the country in the context of a drug importation case; and, finally, in relation to the forensic service, which has been privatised, where the notes that experts make could be relevant to correcting miscarriages of justice. Those are powerful examples of where this will make a difference.

I support the Bill and support the width of the power that would be given to the courts. However, I also strongly support what the noble Lords, Lord Beith and Lord Black, said about the need for safeguards. The width of the power in the Bill would go beyond powers in other areas, and the two big examples are in relation to legal professional privilege and journalistic sources.

It is not possible to override legal professional privilege in the ordinary investigation of crime, but under this power it would be. As the noble Lord, Lord Ramsbotham, said, the power already exists in Scotland. There is no evidence that it causes a problem in Scotland, although I note that the noble Lord said, I think, that there has only been one application under it in Scotland. We need to address in Committee whether there need to be safeguards in the Bill, in particular that the judge, in considering whether to make an order, should have specific regard to the extent that legal professional privilege should be placed in the balance—not because a judge would not do that but because by putting it in the Bill the judge would have to especially think about and refer to it, and be aware that there would need to be a reason if he or she was going to override legal professional privilege. The justification for the power being so wide is that, where somebody is in prison and may be wrongly convicted, exceptional powers may be required.

The second area where we may need to look at putting something in the Bill is in relation to journalistic sources, which the noble Lord, Lord Black, referred to. The courts very recently, in R (David Miranda) v Secretary of State for the Home Department, said that in order to protect people’s rights to freedom of expression, the freedom of the press and the provisions under Article 10 of the European Convention on Human Rights, there needs to be a power that journalistic sources should only be required to be handed over to the state where there is a prior judicial process that can balance the interests of justice—for example, whether a miscarriage of justice has been caused—against the possible “chilling effect” of making an order for the disclosure of journalistic material. The argument was that, if a court can override protections of confidentiality —the Miranda case goes beyond sources—that would have a chilling effect on journalism. Interestingly, in this particularly area, it is journalistic activity that very often is the beginning of the process by which miscarriages of justice are identified.

The noble Lord, Lord Black, referred, in my view correctly, to the special provisions of Section 9 of the Police and Criminal Evidence Act, which specify that an order which may involve the disclosure of journalistic sources can only be made after an inter partes hearing before a Crown Court judge. As I understand it, an order under the new Section 18A of the Criminal Appeal Act 1995 proposed in this Bill can only be made by a Crown Court judge—so the first bit is satisfied—but there is no express provision in relation to the need for an inter partes hearing, as there is under Section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act. I may be wrong in saying that is the best way to deal with this, but again there needs to be some provision in the Bill to deal with it. I do not believe for one moment that there will be dissent around the House as to how we do it or that it will delay the Bill, but it is important that that matter be dealt with.

I will say only in passing that in the incredibly helpful notes on the Bill prepared by the Ministry of Justice, which are in every single respect excellent, paragraph 15 on compatibility with the European Convention on Human Rights says:

“As this is a Private Member’s Bill, no statement under section 19 of the Human Rights Act 1998 is required. Nevertheless, the Government considers the provisions of the Bill to be compatible with the Convention rights, including the right to respect for private life under Article 8, the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 and the right to a fair trial under Article 6”.

However, there is no reference to Article 10, which was specifically referred to in the Miranda case. I am absolutely sure that this was not because the department did not consider it, but it would be worth while to hear what its views are in relation to that.

I conclude by strongly commending the Bill to the House. It will have the support of the Labour Party in its passage.