Criminal Cases Review Commission (Information) Bill

Lord Mackay of Clashfern Excerpts

Friday 11th March 2016 Lords Chamber

[Lord Ramsbotham (CB)]

I am most grateful to the noble Lord, Lord Black, for sharing the content of his amendment with me in advance, which allowed me to obtain a response from the CCRC. I am also glad that those responsible for drawing up the rules, to which I will refer in due course, will have access to our discussions in Hansard. I am also grateful to the Minister for meeting with me and discussing what the Government’s response might be.

The CCRC recognises that the amendment is drafted in similar terms to the police powers to access journalistic material contained in Schedule 1 to the PACE Act 1984. However, it points out that it operates in a very different context from the police:

“The measures in this Bill will only apply in criminal cases in which there has already been a trial, a conviction and (in most cases) an appeal. Therefore, from the outset of its investigation, the CCRC will already know a great deal more about a case in question than a detective in the early stages of an inquiry.

The CCRC is an independent public body, whose whole raison d’être is to ensure that the rights of an individual defendant/appellant are protected vis a vis the State. It is not part of the executive, is independent of the police, the prosecution and government, and exists, not to detect crime but to check for potential miscarriages of justice”.

At Second Reading I mentioned that the powers that the Bill seeks for the CCRC have only once been contested since the Scottish CCRC was established with those powers in Scotland in 1995. I will quote from the judgment given in that one case, which said that,

“the petitioners have a statutory obligation to carry out a full, independent and impartial investigation into … miscarriages of justice and the legislation under which they act was clearly designed to give the widest powers to perform that duty”.

On the amendment itself, Clause 1 of the Bill specifies that a person will be obliged to provide the CCRC with private documents or other material only if ordered to do so by a Crown Court judge, who is best placed to consider and weigh up factors such as the potential relevance of the material, confidentiality issues and the public interest in uncovering miscarriages of justice. The CCRC considers that the most appropriate way of resolving issues of concern in an inter partes oral hearing before a Crown Court judge is by Criminal Procedure Rules rather than in the Bill. The CCRC is represented on the Criminal Procedure Rule Committee and tells me that currently the committee stands ready to put appropriate rules in place as soon as the Bill becomes law. I remind the House that the CCRC always seeks voluntary disclosure first, which process could also be said to be inter partes.

As regards the understandable concern about the protection of the identity of informants expressed by the noble Lord, Lord Black, the CCRC’s already existing processes have been designed to protect such identities, which it is routinely required to do in highly sensitive cases involving police informants. Furthermore, it has many years’ experience of reviewing and storing highly sensitive material, obtained through its existing statutory powers, up to and including “top secret”. Those procedures are regarded as satisfactory by MI5, MI6 and GCHQ, and no accusation of abuse of its powers has ever been made against the CCRC.

In sum, the CCRC believes that the amendment is unnecessary because the points it contains are covered already by existing safeguards or could be covered by the rules committee. Therefore, not least to help the CCRC in its important task of investigating possible miscarriages of justice, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, obviously, this amendment raises matters of considerable interest. I should have thought that proposed new subsection (8)(a) to (c) would inevitably be either part of the new rules or considered already part of the existing system. I find difficulty with proposed new paragraph (d), because it seems that if proposed new paragraphs (a) to (c) are satisfied, that should be sufficient to allow the matter to proceed. It is also very important, as the noble Lord, Lord Ramsbotham, said, to recall that, as far as I know, no complaints about the procedures of the CCRC have been made since it was set up, when I had some responsibility in this area. So I think we can safely leave these issues to be determined in terms of the criminal rules if necessary, while realising that we appreciate the importance of these issues subject to the omission of proposed new paragraph (d) in the amendment.

[Lord Beecham (Lab)]

My Lords, I begin by echoing the remarks of my noble and learned friend Lord Falconer in congratulating the noble Lord on bringing the Bill forward. I also congratulate the noble Lord, Lord Beith, and the Justice Select Committee on their work, which has informed this process.

At Second Reading, the noble Lord, Lord Black, touched on the concerns which are now reflected in the amendment. I do not often support policies or philosophies advanced by those closely associated with the Telegraph but on this occasion I have every sympathy with them. My initial reaction was to believe that it would be sensible to pass the amendment. However, having heard from the noble Lords who have addressed the Committee today, I am persuaded that it is unnecessary to write the rules for the commission when it is clear from its track record that it is in any event very likely to incorporate them. I am sure that the commission will look carefully at the tenor of today’s debate and the Second Reading debate before finalising its ultimate response, assuming that the Bill secures its enactment with the approval of the House of Commons.

I certainly bear in mind the time constraints and perhaps the undesirability of adding material which may in any way impede the progress of the Bill when it is considered in the Commons. In the circumstances, therefore, I certainly join others in respectfully advising the noble Lord not to press his amendment. However, I hope that the Minister will clearly put on the record support for what lies behind the amendment, as I think that will assist in securing the positive response from the commission that all of us wish to see.