Criminal Cases Review Commission (Information) Bill

Lord Faulks Excerpts

Friday 26th February 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I add my congratulations to those of others who have applauded the noble Lord, Lord Ramsbotham, for bringing the Bill forward and for his very lucid exposition of the reasons behind it and the history of legislation which gives rise to the need for this significant change. He has made my task much easier, and I hope I will not repeat too much of what he has so helpfully said about the circumstances in which we in this House consider the Bill.

The Bill inserts a new section into the Criminal Appeal Act 1995, which will mean that the Criminal Cases Review Commission will be able to obtain a court order requiring a private individual or a private organisation to disclose a document or other material in their possession. The court will only be able to make an order if it thinks the document or other material may assist the commission in the exercise of its functions—that of course is, of itself, a restriction which courts will bear very much in mind.

Once the court order has been made, as has been indicated, failure to disclose the documents will be punishable as contempt of court. The Government feel that it is likely that these powers will be needed rarely. I note what the noble Lord, Lord Ramsbotham, said about how rarely this power has been used in Scotland, where it has existed for some time, and how relatively rarely it is anticipated it will be needed in future in this country. Of course it has rightly been pointed out that the existence of the power itself will very much act as an encouragement and an incentive for private bodies to provide the information without a court order. Nevertheless, there will be circumstances in which organisations may feel it necessary for their position to be covered by a court order, notwithstanding that they do not oppose it. They will then not be vulnerable to any criticism or legal action. So there will be occasions on which this happens.

Examples have helpfully been given of particular bodies which may be required by the provisions to give up material. Reference was made to the Forensic Science Service, an example of the increasing privatisation of certain public bodies. A key part of the commission’s work involves re-examination and retesting of material obtained at crime scenes. Much of that material is initially tested and held by private companies.

The restriction of what the Criminal Cases Review Commission can do was rightly emphasised. It will refer matters to the Court of Appeal only where there is a real possibility that a conviction will not be upheld. Several noble Lords made the point that it is a tribute to our justice system that those occasions are relatively rare, but of course the commission performs a crucial function—often, as was pointed out, assisted by journalists carrying out investigative processes. It is something of an irony, to which I shall come in a moment, that those very journalists will be anxious to protect their sources if any order is made asking them to, as it were, disgorge material which they hold.

The Justice Select Committee investigated the work of the Criminal Cases Review Commission, and we are very fortunate to have its former chairman, in the shape of the noble Lord, Lord Beith, with us. As he rightly said, he has had a profitable few weeks in terms of responses to various recommendations of his Committee. He asked me why we were not implementing one of the recommendations: to give the CCRC powers to sanction public bodies—rather than private ones—that do not provide information. We recognise the burden that delay and non-compliance places on the CCRC; we are considering whether any further steps can be taken to improve the situation.

The noble Lord also asked about his committee’s recommendation to give the CCRC more money. As he acknowledged, there is a shortage of money generally. The CCRC is managed within the same spending review process as the rest of the Ministry of Justice. It is right to applaud the performance of the CCRC. For example, it closed 947 cases in 2010-11, a figure which rose to 1,632 in 2014-15 without an increase in resources. I congratulate the CCRC on its work. Of course, it is very difficult to generalise about how much work will be involved in a particular investigation.

However, the committee’s main recommendation has been well and truly taken forward by this Private Member’s Bill. An anxiety was expressed by several noble Lords—quite correctly—about questions of confidentiality. Of course, the individual or private company from whom material is requested will be able to put their case to the court if they believe that the documents or other material need to remain confidential and should not be disclosed. That, of itself, is a safeguard.

The question of legal professional privilege was raised. This matter was helpfully referred to by the report of the Constitution Committee of your Lordships’ House. It considered the application of the Human Rights Act, among other things, to the difficult process that judges will have to undertake in this context—as they do in many others—of weighing up the potential conflict between different rights under the Act. The noble and learned Lord, Lord Falconer, referred to the fact that the Ministry of Justice note did not specifically refer to Article 10. Of course, as a public body, the court would be obliged in any event to take into account all the articles of the convention incorporated into the Human Rights Act, so the fact that it was not expressly considered would in no way prevent someone raising the point if the matter were ventilated in a court hearing.

I entirely accept what my noble friend Lord Black said about the importance of preserving journalists’ sources. The Government and, I am sure, the noble Lord, Lord Ramsbotham, will have that well in mind, and so should a court. Of course, the restrictions on the way that documents or material are disclosed should safeguard those sources adequately. The CCRC itself has heavy obligations in its duty towards such material. So far, it has an absolutely unblemished record in this regard, so I hope that provides some consolation. It is a matter that a court should have very much in mind.

The noble and learned Lord, Lord Falconer, made the point that, in general terms, legal and professional privilege is inviolate. In fact, of course, it is subject to exceptions in any event, referred to, helpfully, in the Constitution Committee’s report on the so-called iniquity principle. It states at paragraph 8 that,

“consultations or communications between a lawyer and his client that are in furtherance of crime or fraud are not protected by”,

legal professional privilege. So it is a rule subject in any event to exceptions, but it is an important rule, and I am sure the courts will be slow to override it unless the circumstances justify doing so. Of course, both journalists and lawyers will know that the possibility of a material injustice being allowed to continue will be a heavy matter to weigh in the balance when deciding whether it is appropriate to make such an order.

The Bill will extend to England, Wales and Northern Ireland. Scotland, as has been said, has a separate Criminal Cases Review Commission, which I think it is fair to say has been a success. The Bill will put in place similar arrangements for England, Wales and Northern Ireland. We feel that it will make an important contribution to ensuring that the justice system meets public expectations, and we welcome it.

I should not conclude before referring to the point raised by my noble friend Lord Trefgarne about Sergeant Blackman, which he has helpfully raised on his behalf in your Lordships’ House on a number of occasions. Of course, the CCRC is an independent body, and it is not appropriate for the Government to interfere in what it does. However, I undertake on the Government’s behalf to ask it whether there are any developments in that regard. It will certainly read this debate and will have well in mind the anxiety on the part of Sergeant Blackman’s family that it investigate this matter as expeditiously as possible—as is consistent with fairness to both Sergeant Blackman and the bodies responsible for bringing him to court.

The Government welcome the Bill. We feel that it will very much improve a matter which needs improvement.