Orders of the Day — Crown Prosecution Service

– in the House of Commons at 7:33 pm on 12th January 1995.

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Motion made, and Question proposed, That this House do now adjourn.—[Mr. Wells.]

Photo of Gwyneth Dunwoody Gwyneth Dunwoody , Crewe and Nantwich 7:34 pm, 12th January 1995

One realises that justice is frequently portrayed in this country as blind. It is important, however, that it should not also be portrayed as deaf. This evening I want to raise the question of the identification of the general public with sentencing policy in the courts, particularly when horrendous and—one hopes—unique cases of murder are dealt with.

I should like to set out the circumstances in which the case of a constituent of mine, a Mr. Ryan Keen, was considered. A young and active man, he was well known in the town of Nantwich as a footballer. He was very popular and had worked extremely hard building up the local football team. Among the people connected with him were two men who chose, although they were 10 years older than him, to try to enter into a friendship with him. Those two men lured Ryan Keen first into a tour of various pubs and then to an address at which he was doused in paint stripper, whereupon lighted matches were thrown at him. The result was a horrific death involving 95 per cent. burns. I ask the House to consider the agony that that young man must have endured before he died.

I want to comment on some of the facts that were given during the trial because I think that they are relevant. Mr. Keen was said to have gone with the defendants to a pub where bar staff and customers alleged that they heard Card and Oliver, the two men initially charged with the murder, discussing setting someone alight. One witness said that as they were leaving the pub, Oliver told Card: I'll set light and don't you help. The consultant pathologist who gave evidence in the case said: Ryan had extensive burns covering 95 per cent. of the total area of his body. The only area not burned was his foot. There is no possibility of anyone surviving burns like that. He also gave evidence to the effect that Ryan suffered internal combustion, either by inhaling liquid which caught light inside him or by the fire passing down his throat. Traces of flammable liquid were found inside his stomach, an empty half-gallon bottle marked "white spirit" was found by the fire service officer on the floor and there was a powerful smell of the liquid in the house.

I give the House these horrendous details not out of any desire to shock but because, when dealing with such appalling cases, it is vital to understand the reactions of the public. In my constituency, a great deal of attention was paid to the case. The day-to-day evidence was reported in considerable detail. It was therefore a matter of shock when, after some days of evidence being heard, the charge was reduced from murder to one of manslaughter. There were press reports of a Crown Prosecution Service spokesman saying that there were no plans to appeal against the sentences.

The Minister will know that the sentences handed down, although commensurate with the charge of manslaughter, were fairly light—three and five years. The CPS spokesman was supposed to have said that they were about what you'd expect for manslaughter. I find it difficult to understand why the charge was changed in this way half way through the case. I am not a lawyer, but I understand that defendants frequently change their plea at the initial hearing. The strength of our jury system and its very foundation is that it should decide the facts of a case—whether defendants are guilty or not guilty.

The jury was not permitted to reach such a conclusion. I have to ask, therefore: was there a plea bargain? If some kind of arrangement was reached, on what basis was it made? I have looked carefully at the official definitions of murder and manslaughter to try to relate those charges to what happened in this trial. Indeed, I have tried very hard to understand exactly why the procedure went as it did.

I wrote to the Attorney-General, raising with him the conduct of the case. I hesitate to use the word "derisory", but the sentences were very light given the nature of the death. I asked whether there was any way in which the state would appeal against them and seek a rather more exemplary punishment for the two men concerned. He was courteous enough to send me a detailed reply, which set out not only the range of sentence appropriate in any case but the behaviour that the judge would normally be expected to follow and the conclusions that he reached. He said that the judge set out the factual basis on which he passed sentence … He found that Oliver conceived a plan to punish Ryan Keen … having lured him to Oliver's house on the pretext of taking part in some form of dare and there to frighten him or injure him but only to some limited extent. Frankly, if one douses a human being almost from head to toe in paint thinner then throws lighted matches at him, I find it difficult to understand that that is regarded as something that would not do irreparable harm. When I helped to run a general practice, we had an appalling death of someone who suffered the same degree of burns. The coroners court accepted that such a degree of burning could not be an accident. Therefore, both the parents and the neighbours of this boy find that initial fact very difficult to accept.

When I went further into the case, and even when I began to study the Attorney-General's letter closely, I found other things that I found difficult to understand. The Attorney-General said: I have also considered your concern regarding the acceptance of the pleas to manslaughter. As you are aware, Card and Oliver were initially tried for murder. It was only after the court and jury had heard the whole of the prosecution's case and after Oliver had given evidence that the trial judge asked to see all counsel in his chambers. I have to ask: why at that point? Why were the pleas not changed initially? Why was so much of the case allowed to proceed? Is it true that there was not enough time for the whole of the case to continue? If so, why was it not adjourned? It would certainly have been difficult and expensive, but it would not have been impossible.

Let me ask some other questions that concern me greatly. If the plea bargain took place half way through the hearing, by whom was the decision taken? Was an arrangement reached between the judiciary and those who were defending and prosecuting the case? Who investigated, and what were their conclusions? What reasons were given for the plea bargaining? Why did the Crown Prosecution Service agree to drop the case after four days of hearing evidence?

When one looks closely at the management of the case, one sees the difficulty that the general public has in accepting the decisions that were handed down in relation to the two men. Most people, on a commonsense basis, would have accepted that what the two men were being tried for—murder—was the charge that they should have faced. What most reasonable people would find difficult to accept—myself among them—is why the charge was reduced to manslaughter.

I worry that the system may be moving away from a decision of a jury towards some form of Americanisation. Plea bargaining major sentences according to a number of factors—which, in this case, were not made clear in court or to the family, who were devastated by the decision—is an exceedingly dangerous habit to form.

A jury was in court. It heard the evidence and it should have taken the decision. If there was to be a change of plea, why was it allowed at that stage in the case? If the executive are doing deals with the judiciary, we are getting into a very dangerous situation and one that will have a direct effect on what happens in our courts.

The CPS must have believed that the evidence to charge the defendants with murder was sufficient otherwise it would not, I presume, have brought the case. So what happened four days into the hearing to change its mind?

In some instances, that may be in the general public interest. In, for example, the Guinness case it may have been in the public interest to consolidate a number of charges and to go for only one charge, but that does not apply in this instance. I do not believe, given the rules, that there should be plea bargaining in a case of murder. A full explanation should be given and such decisions should not be taken between the judiciary and the executive in secret. In my view, the family has been the victim of a slide towards the Americanisation of the British system. If there was a problem, the case should have been adjourned. There is a proper procedure and we cannot allow this kind of thing to happen.

I know that if the House of Commons ever gave instructions to judges about the decisions that they should take in relation to cases we would be sliding down an exceedingly dangerous slope. I do not seek to do that, but I wonder whether Ministers understand that ordinary people, knowing that they have lost a very loved child—a fit 20-year-old—in a heinous attack by two fit 30-year-olds, want a sentence that reflects the appalling fate that befell their child or a clear demonstration of why the system has failed them. They do not accept that the sentences passed on the two men were in any way commensurate with the crime. They do not accept that what happened during the trial was a true reflection of justice. They do not accept that a better fist could not have been made either of explaining openly what was happening or at least seeking to justify it. If that is their view, I have to tell the Minister that it is also mine.

I am desperately unhappy about what happened in the case of Ryan Keen. It may indeed be too late to do anything about the sentences passed on those two young men, which may now be an accurate reflection of the final charge that they faced, but I must tell the Minister that there is a public interest in proper justice, in openness and in a belief that we have the jury system to deliver some decision. That did not happen and many, many people wonder why.

Photo of Mr Derek Spencer Mr Derek Spencer , Brighton, Pavilion 7:49 pm, 12th January 1995

I congratulate the hon. Member for Crewe and Nantwich (Mrs. Dunwoody) on raising this important matter which gives me the opportunity, first, to set out in general terms the basis on which charges may from time to time be altered, and then to deal with the specific case that she raised.

Justice is not blind. One can peer at virtually any statue of justice—in particular the one on top of the Old Bailey—and there is no blindfold around the eyes of justice. Justice has very sharp eyes and ears.

My right hon. and learned Friend the Attorney-General and I were deeply concerned for the family in their sad and tragic loss. I have spent most of my life in the courts, principally in the criminal courts, and I am only too familiar with the anguish of parents in circumstances such as this. Ryan Keen had a most promising life ahead of him and it was a tragedy of the highest order that it was so dreadfully and wastefully cut short, as my right hon. and learned Friend said when he wrote to the hon. Lady on 16 November.

As I promised, I shall first deal with the general principles which the Crown Prosecution Service adopts in its selection of charges in criminal cases. They are not just plucked out of a hat. They are not just a matter of convenience. They are not based on the concept of cost. They are based on the principle of seeing that justice is done on the particular facts revealed by the evidence in the case.

Section 7 of the code for Crown prosecutors sets out the three principal criteria which are applied. First, the charge or charges must reflect the seriousness of the offending. Secondly, they must give the court adequate sentencing powers. Thirdly, they must enable the case to be presented in a clear and simple way. That latter factor is of special importance in cases of trial by jury, which this was.

In an ideal world it would be possible for the custody officer, who initiates the process of prosecution when a suspect is brought to a police station, to alight on a charge which remains the charge throughout the life of the prosecution until a verdict is returned either by the magistrates, if it is a summary offence, or by a jury, if it is a case tried on indictment.

But in the nature of things, that is not always possible. The custody officer may have only a limited account of what took place from the arresting officer who may have been unable to contact a number of important witnesses at that time. The custody officer must do his best on the facts as they are known to him to prefer an appropriate charge.

I have had the advantage in recent months of going to police stations throughout the country to observe custody officers dealing with suspects in the lively environment of custody suites at police stations. It is an instructive experience. On two recent occasions, I witnessed one in south Wales and another in Manchester.

The custody suite is not a place for peace and quiet or reflection. There may be tearful suspects, friends and relatives wanting their say, property to be gathered up and accounted for and other matters of a pressing nature with which the custody officer must deal. But he selects the charge at that stage on the basis of the facts as they are recounted to him. The astonishing thing is that so often the custody officer's sensing of the true charge is subsequently borne out when more facts come to hand. That is the first step in the prosecution process—the preferring of the charge by the custody officer.

The next stage is the consideration of the case by a lawyer in the CPS, usually a few weeks later when more evidence has been gathered together. It is hoped at that stage that the case will be complete or near complete. There may be much more evidence than that which the custody officer had the advantage of considering at the first stage.

It is not surprising that at that stage, which I shall call stage two, the charge preferred by the police may need to be withdrawn, substituted or added to. But the purpose of that is to comply with the three criteria in section 7 of the code which I outlined at the beginning of my speech. That in turn is designed to ensure that justice, according to law, is done in each case as it proceeds on its way through the courts.

Let me give a number of examples which may occur in the life of a case. It does not ossify after the lawyer in the CPS or after counsel has drafted the indictment, if he does, or if he approves the indictment drafted by a lawyer in the CPS. In the life of a case, sometimes the evidence changes dramatically.

The defence may submit medical reports or medical reports may come to hand as the result of an initiative taken by the CPS or the barrister instructed in the case. That evidence might tend to show that a defendant is not capable of forming a specific intent which is an essential ingredient in the offence. A witness may become too ill to testify, leave the country or die.

All those matters might put a different complexion on the case from that which originally appeared. It would be obtuse if those responsible for the prosecuting process did not take those changes in the evidential base into consideration in their framing of the charges or in their subsequent decisions on whether to accept a plea.

Photo of Mr Derek Spencer Mr Derek Spencer , Brighton, Pavilion

I shall give way to the hon. Lady in a moment, but I would like to complete this stage of what I have to say because it might assist comprehension.

At some appropriate stage, either immediately before a defendant pleads to the indictment or at the end of the Crown case, or at any stage prior to a jury returning its verdict, the prosecution may decide to accept some plea to a charge lesser than the original one. That is not at all unusual. The decision may be based on the fact that the evidence on paper has not been borne out by the evidence given live by witnesses in the witness box, on oath. After that evidence has been tested in cross-examination and subjected to scrutiny and, possibly, witnesses have been called for the defence, it may become apparent that the view initially formed by the Crown is no longer borne out and that it would be contrary to the interests of justice to seek to maintain a case that is no longer supported by the evidence. The role of the prosecutor in such circumstances—whether that prosecutor be a Crown Prosecution Service lawyer in a magistrates court or a junior or leading counsel in the Crown court—is set out in section 9 of the code.

In those circumstances, the lawyer concerned should accept the defendant's pleas only if he concludes that the court will be able to pass a sentence that matches the seriousness of the offence. In no circumstances must the Crown accept a plea merely for reasons of convenience.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody , Crewe and Nantwich

I am sure that the Solicitor-General's Department has briefed him carefully, and that he has not come to the House unprepared. How many cases does he know of in which evidence was given to the court for four days and the judge then called counsel together and asked—presumably, though no clear statement was made about the matter—for a change in the pleas? If the Solicitor-General can assure me that that is not unusual but happens frequently, I think that the House of Commons should consider certain questions. I want him to tell me that what happened in this case was not unusual.

Photo of Mr Derek Spencer Mr Derek Spencer , Brighton, Pavilion

The hon. Lady has a powerful crystal ball. I made a note of what I would say on that subject before I came into the Chamber: I wrote that the procedure adopted by the judge in this case was not unusual. It is with no disrespect to the officials who briefed me that I tell the hon. Lady that I do not need to ask them whether the procedure was unusual; having spent more than 30 years in the courts, I know from my own experience that it happens from time to time. I have been personally involved—both as prosecuting and as defending counsel—in cases in which such a procedure has taken place.

I hope that I can satisfy both the hon. Lady and the wider public that the procedure is not contrary to the interests of justice in the slightest; indeed, in appropriate cases it is very much in those interests. The objective is to ensure that justice is done—that a defendant is convicted of an offence of which the evidence shows him and no other to be guilty, and that that defendant is given a proper and appropriate sentence for that offence. Those are the twin purposes of accepting pleas in such circumstances.

The case of Card and Oliver did not last for three or four days, as the hon. Lady said. In fact, it started on 5 October and continued until 14 October—the Crown case alone, that is. On Monday 17 October, the defence made a submission that the murder case should not go to a jury. On that day the judge gave counsel an indication of his view, having rejected the submission.

On Tuesday 18 October, the judge gave a further indication. The defendants pleaded guilty to manslaughter, a plea accepted by the Crown, on Wednesday 19 October. The case lasted from 5 October until 19 October. Most of that time was occupied by the hearing of the Crown case in full and subsequently by the first defendant, Oliver, giving evidence in chief, being cross-examined by leading counsel for the Crown and then being re-examined. It was at that stage that the judge gave his final view.

There was no question of secret justice or consideration of matters that were not ventilated to the public. All the evidence from those whom it was intended to call—with the exception of two minor witnesses—was given. I can tell the hon. Lady, if she does not already know, that although the first defendant—Oliver—gave evidence, it was not the intention of the second defendant—Card—to give evidence, so no additional light would have been thrown on the case by his evidence. If memory serves me aright, the hon. Lady raised that point in one of the letters that she sent to us.

Let me make another correction to set the case in its proper context. The sentences were not as the hon. Lady described them; they were of an entirely different order of magnitude. The principal defendant, Oliver, was sent to prison for eight years, and the defendant Card for six years. I venture to suggest that that framework is rather different from the account given by the hon. Lady, doubtless in entirely good faith.

Let me explain in a little more detail how the case evolved. As the hon. Lady rightly said, the prosecution did not take the initiative in substituting a lesser charge or in any way seeking to compromise the case. The defendants were initially charged with murder and committed for trial on that basis; the Crown opened its case as a joint charge of murder, and conducted it in that way throughout. As I have said, at the end of the Crown case certain submissions were made.

The hon. Lady asked how, if a jury had been sworn to give a true verdict according to the evidence, a judge could express his view of the facts—which was then accepted by the Crown—and the jury could never complete their hearing of the case.

What took place was not unusual: I shall explain why it was entirely proper. The trial judge's function is to ensure that the quality of the evidence that is called justifies conviction. If, as in this case, the judge concludes that the nature and quality of the evidence are such that they do not justify conviction, he can convey that view to Crown counsel and defending counsel. Far from being improper, that is quite appropriate and the judge's duty as part of his supervisory power is to do just that.

The judge heard virtually all the evidence before expressing the view that in his judgment it would be inappropriate for the Crown to press for a conviction for murder and that such a conviction would be contrary to the justice of the case as he had heard it.

Leading counsel for the Crown was Mr. Anthony Evans QC, who is an experienced and robust counsel, and he did not rubber-stamp the judge's view. It would have been quite wrong for him to do that. He took the view into account and consulted those in the CPS who were instructing him. They concluded that in the circumstances of the case, it was right to accept pleas of manslaughter and not to continue to invite the jury to convict for murder because that would be contrary to the justice of the case.

The hon. Lady says that the trial should have continued. However, that would surely have been quite improper. The Farquharson guidelines indicate that, at that stage, Crown counsel is in charge of the prosecuting process. He had heard all the evidence and in consultation with the CPS he was of the view, as was Mr. Justice Waterhouse, who is an extremely experienced Queen's Bench judge, that it would have been calculated to lead to a miscarriage of justice if prosecuting counsel had allowed the case to go on. Quite properly, he adopted a course which is not unusual and decided to accept the pleas of manslaughter. The jury acquitted the defendants of murder and convicted them of manslaughter. The defendants were in charge of the jury on counts of murder and that was the only process by which the case could be terminated. In the circumstances that I have outlined, it was the jury's verdict.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody , Crewe and Nantwich

Of course, the Solicitor-General means that the jury was directed to come to that conclusion. He has said that the man who lit the match and flicked it did not give evidence. Is he convinced that all the evidence affecting the case had been heard? I accept any criticism that the Minister cares to make about the way I presented the case. But I am not a lawyer and it would be difficult to persuade people who have read the details of the case that there was not much more evidence to be heard.

Photo of Mr Derek Spencer Mr Derek Spencer , Brighton, Pavilion

I fear that the hon. Lady is quite wrong about that. I have told her that there was virtually nothing more to be heard because Card did not intend to go into the witness box.

When the judge sentenced the two defendants he set out most clearly, as prosecuting counsel had done when he accepted the pleas, the basis upon which he was sentencing them. First, he said that the two defendants had formed a plan to teach Keen a lesson for getting involved with Card's ex-girlfriend. Keen was lured to Oliver's house on the pretext of taking part in some form of joke or dare. He was there doused with turpentine and frightened or the defendants intended to injure him in a minor way by using a flame.

With the greatest respect, the hon. Lady, who was not present in court, or anybody else who was not there, cannot second-guess the judge who heard all the evidence. Secondly, the judge concluded that Oliver was more involved in planning the event and that to prevent the deceased from chickening out, he offered to sit with the deceased while Card poured turpentine on both of them. Card then set alight the deceased's clothing. What is more, he also set Oliver alight and Oliver sustained some burns.

Thirdly, the judge found as a fact that both the offenders had much to drink and neither of them foresaw that the deceased would become a ball of flame or that his clothes were so combustible. Fourthly, and more importantly because it is crucial to the sentence which the judge subsequently passed, neither of the offenders had any intention of causing really serious injury to the deceased who was still their friend. Oliver attempted to extinguish the flames and Card's inactivity was a result of shock, not malice.

In view of those findings by the judge, it is quite wrong to view this case as one of murder and to invite my right hon. and learned Friend the Attorney-General to refer it to the Court of Appeal on the basis that the facts were other than the judge had found. In the circumstances which I have explained the prosecution accepted the plea to manslaughter. At the risk of becoming tedious, I repeat that it is not unusual for a trial judge who has formed such a clear view of the facts to indicate that view and it is wholly appropriate for the Crown to take notice.

The sentences of eight years for Oliver and six years for Card were within the range of sentences for offences of manslaughter. They were not light or derisory sentences, far from it. In my view, justice was dispensed in law and in fact.

Question put and agreed to.

Adjourned accordingly at eighteen minutes past Eight o'clock.