Leave to Appeal

Orders of the Day — Criminal Justice (Scotland) Bill [Lords] – in the House of Commons at 6:30 pm on 7th June 1995.

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Photo of John McFall John McFall , Dumbarton 6:30 pm, 7th June 1995

I beg to move amendment No. 170, in page 33, line 14, at end insert— '(1 A) In section 228(1) of the 1975 Act there shall be inserted at the end "or any allegation that the conviction was otherwise unsafe.".'.

Mr. Deputy Speaker:

With this, it will be convenient to discuss also amendment No. 171, in page 33, line 31, at end insert— 'Provided that, in the case of an allegation under subsection 228(2) above of any miscarriage of justice in the proceedings in which the person was convicted or any miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial, the judge shall grant leave to appeal.'.

Photo of John McFall John McFall , Dumbarton

Amendments Nos. 170 and 171 are concerned with convictions that are considered to be unsafe.

Amendment No. 171 is also concerned with evidence on any issue where it is considered that there was a miscarriage of justice on the basis of the existence and significance of additional evidence that was not heard at the trial and was not available and could not reasonably have been made available at the trial. In that case, the judge, in our submission, shall grant leave to appeal.

We have seen that situation in Scotland over the past six months or so, where there has been an unprecedented split between one division of the Court of Criminal Appeal, chaired by Lord Hope, and the other division, presided over by Lord Ross, the Lord Justice-Clerk. That dispute centred on cases in which someone who had been convicted claimed that since his trial credible and reliable new evidence had emerged which cast serious doubt on his guilt. The legislation allows the Appeal Court to hear additional evidence only if that evidence was not available at the trial and could not reasonably have been made available.

Several months ago, Lord Hope, supported by Lords Allanbridge and Brand, decided to allow an appeal in a case despite the fact that the additional evidence was available at the trial. However, that decision was tested by five other Law Lords, including Lords Ross, McCluskey, Morrison, the late Lord Morton and Lord Cowie. They stated that the law was clear and that the other three judges had gone against their own previous decisions in the way in which they had reinterpreted it.

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The reason for that reinterpretation by Scotland's most senior judge was that he wished to be flexible regarding appeals and the law. That is not to say that other judges did not wish to be flexible. They felt that Parliament had set down the parameters within which they had to operate. However, I think that Lord Hope was considering the situation regarding the environment in which the law operates and wished to place a liberal interpretation on that. I, and I think many others, would agree with him regarding his intentions in that respect.

There is a real and growing disquiet about the Scottish Appeal Court's ability or willingness to consider possible miscarriages of justice. Lawyers and the public are becoming more and more aware of how difficult it is to have any case re-examined in Scotland. I think that it was with that in mind that Lord Hope decided, in his opinion and in that of the other judges, to interpret the law in a more liberal way.

The situation in Scotland is not different from that in England and Wales. It is a myth that the miscarriages of justice discovered in the past few years in England and Wales are unlikely to happen in Scotland because of what is perceived as a superior legal system. The truth is that, in Scotland, we are less likely to face up to the possibility that they may exist.

At present in Scottish gaols, a number of prisoners are robustly proclaiming their innocence. A number of such cases have been taken up by their Members of Parliament. For example, the case of George Beattie has been taken up by his Member of Parliament, my hon. Friend the Member for Clydesdale (Mr. Hood). In addition, there are the cases of Raymond Gilmour from Paisley and the ice cream war prisoners, Thomas Campbell and Joseph Steel—the latter having gone to extraordinary lengths, gluing himself to the fence at Buckingham palace, to proclaim his innocence, and the former, having been on hunger strike, declared, on his return to prison from hospital, that he might go on hunger strike again. The cases of Peter Hurtt and Alex Hall are two further examples.

There is a real danger in this situation. Pressure is building up and fuelling the argument for easier referral in cases where there is an alleged miscarriage of justice, notwithstanding the fact that we wish a new body to consider the situation. It is noticeable that the noble Lord Ross, the Lord Justice-Clerk, who ruled against Lord Hope's liberal interpretation of the law, himself in a speech just two years ago, said that there had to be a body to deal with miscarriages of justice in the criminal law system.

The situation is crying out for some change. Even in tonight's debate, we could go some way towards reassuring the legal fraternity and the judges in Scotland about Parliament's intentions. When the Criminal Justice (Scotland) Act 1980, and clause 32 in particular, was being debated—now section 228 of the Criminal Procedure (Scotland) Act 1975—there was no perception that future generations would be able to bring Hansard to their aid. But the decision in the other place in Pepper v. Hart—in November 1992, if I remember correctly—has ensured that Hansard will be of great assistance. It is precisely with regard to areas of ambiguity where the intentions of Parliament need to be ascertained that the deliberations in Parliament can be used by those outside to interpret the will of Parliament.

The intention of Parliament with regard to appeals is not very clear. My evidence for that is the Hansard report of 5 June 1980 of the Standing Committee's proceedings on clause 32 of the Criminal Justice (Scotland) Bill. That has now become section 228 of the Criminal Procedure (Scotland) Act 1975. Only eight minutes was allowed in Committee to debate the 17 pages of the appeal procedure. Parliament cannot do adequate justice to such a volume of work in eight minutes. We should be concerned that, with the eight minutes that we spent in 1980 and perhaps eight minutes tonight, we shall have spent only a quarter of an hour on the issue of appeals, yet it is one that is tearing the heart out of the Scottish legal system, with the top judges almost at each other's throats.

Given the judgment in Pepper v. Hart, Parliament's intentions can be made clear tonight. Tonight's debate could have a crucial and immediate effect on the development of law in Scotland. We owe it to the legal system to give the matter more than the eight minutes given to it in 1980. The Minister could bring clarity to the policy decision for a liberal interpretation which Lord Hope and other judges are seeking to develop.

If we had what was considered to be an unsafe conviction and Lord Hope's liberal interpretation was applied and upheld, the case of Elliott, with which the Minister is familiar, would not have overturned the decision in the case of Church. We could do the legal system in Scotland a favour tonight by our deliberations.

The Government set up the Sutherland committee to consider the issue of miscarriages of justice and to establish a body to consider them. One of the criteria that it considered was whether the Appeal Court should be able to hear additional evidence that was available at the time of the trial provided that there was a reasonable explanation for the failure to adduce the evidence. If I am correct in my interpretation, the dispute between Lord Hope and his fellow judges centres on the interpretation of the word "reasonable".

I favour the view that the Appeal Court should be able to hear additional evidence that was available at the time of the trial, provided that there is a reasonable explanation for the failure to adduce it. The current statutory provisions in respect of additional evidence are contained in section 228 of the Criminal Procedure (Scotland) Act 1975, under which a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice, on the basis of the existence and significance of additional evidence that was not heard at the trial and was not available and could not reasonably have been made available at the trial.

Other important statutory provisions in respect of additional evidence are sections 252 and 253 of the Criminal Procedure (Scotland) Act 1975. In particular, section 252(c) states: Without prejudice to any existing power of the High Court that court may for the purposes of an appeal under section 228(1) … (c) take account of any circumstances relevant to the case which were not before the trial judge. A number of observations could be made about section 228(2), but, for the purposes of this debate, it is appropriate to concentrate on the words in the statute that relate to the non-availability limit on the introduction of fresh evidence. The cases of Church v. Her Majesty's Advocate 1995—to which I referred earlier—and Elliott v. Her Majesty's Advocate 1995 are relevant. In the Elliott case, the court considered that the provisions of section 228(2) regarding additional evidence constituted a requirement that must be satisfied before the court could hear additional evidence.

Whereas section 228(2) allows a review of any alleged miscarriage of justice when that alleged miscarriage of justice relates to the non-production of additional evidence, the court is constrained by the terms of the statute to hear that evidence only if it was not heard at the trial, was not available and could not reasonably have been made available at the trial.

In earlier debates, the Minister has referred to the Thomson committee. In its first report in August 1971, it expressed the view that additional evidence could be presented on the basis of a reasonable explanation for the failure to adduce the evidence at the trial. The current provision in section 228(2), which derives from the Criminal Justice (Scotland) Act 1980, was considered by the court in the Elliott case. The Lord Justice-Clerk considers that, because Parliament did not adopt the reasonable explanation test suggested by the Thomson committee and instead provided the wording currently contained in the statute, it is clear that Parliament intended this more exacting test. The decision in that case reaffirmed the law as it stood prior to the Church case.

Given that in 1980 we debated such a volume of material for only eight minutes, I wonder what Parliament's intention was. I think that many people outside will wonder the same, and it is important for the Minister to comment tonight. Concern has been expressed in a number of quarters that the High Court's interpretation of the additional evidence test does not meet the demands of justice.

The interpretation of the non-availability limit and the introduction of fresh evidence are clearly an issue. In paragraphs 6.29 and 6.30 of his book "Criminal Appeals", Lord McCluskey suggests that non-availability raises a simple question of fact: either it was available or it was not but one must also ask: 'available to whom? Lord McCluskey concludes that availability must be considered from the standpoint of the appellant, full account being taken of what was practicable for him at the trial. He also states that the word "reasonable" is notoriously elastic and it remains to be seen how severely the High Court will apply this test if the applicant was in fact ignorant of the existence or potential of the additional evidence but could have learned of it by harder work or better detection work he or his advisers might have discovered it". In all the circumstances, we support the view taken in the Church case, that a reasonable explanation for the failure to produce evidence based on a liberal interpretation of section 228(2) shows the route to reform. It is clear that the policy objective pursued by the Lord Justice-General is, in that case, correct, and that the proper test for dealing with the problem raised in the Church case would be along the lines of an excusable failure to produce the evidence at the original trial. That having been said, I acknowledge that the decision in the Elliott case to the effect that the Church case was wrongly decided is—in terms of the proper construction of the 1975 Act—correct.

I have considered the test proposed, under the Criminal Appeal Bill, that the terms of section 23(2) of the Criminal Appeal Act 1968 should be amended to provide that the evidence should be admissible and capable of belief. I approve of the change, and I think that many members of the Scottish legal fraternity consider that a similar provision should be enacted for Scotland.

Given the Pepper v. Hart decision in the House of Lords, I stand by the comments that I made in The Scotsman on 25 March 1995. I said then: The fact that the law is so rigid means that justice is not being done fairly". That justice is not being done fairly is recognised not only by those who have recourse to the courts but by those who preside over them. It is incumbent on the Minister to provide a clarity that could assist the Law Lords when they examine cases such as this in the future.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 7:15 pm, 7th June 1995

I understand that, in the Elliott case, a five-judge bench of the High Court overruled the recent judgment in Church v.Her Majesty's Advocate. As the hon. Member for Dumbarton (Mr. McFall) said, the judgment concerned section 228(2) of the Criminal Procedure (Scotland) Act 1975.

The Elliott judgment confirmed that a person might bring an appeal on the basis of fresh evidence only if that evidence was not available and could not reasonably have been made available at the trial. The effect of the judgment is that the law has been declared to be as it was thought to be before the Church judgment.

The question on which the hon. Gentleman concentrated—the question whether there is any need to change section 228(2) —is now being considered by the committee on appeals criteria and miscarriages of justice procedures, chaired by Sir Stewart Sutherland. We shall decide whether proposals for legislative action should be presented once that committee has reported.

Amendments Nos. 170 and 171 appear to be founded on a belief that the new leave to appeal arrangements will increase the likelihood that miscarriages of justice will go uncorrected. I cannot accept that proposition. The leave to appeal arrangements contained in clause 42 will filter out—at an early stage—only frivolous and unmeritorious appeals that would otherwise waste the time of the Appeal Court. The new arrangements should therefore allow the court more time in which to consider meritorious appeals when a miscarriage of justice may genuinely have occurred.

Amendment No. 170 deals with the question of appeals criteria in general, and appears to seek to modify the criteria currently applied by the Appeal Court in Scotland. The Scottish Office takes the matter very seriously. We consulted on possible changes to the criteria applied by the Appeal Court in the consultation paper "Sentencing and Appeals", but no clear consensus emerged.

Photo of John McFall John McFall , Dumbarton

What does the Minister consider to be a definition of "reasonable"? That one word is causing a fracture between Lord Hope and other Lords in the Scottish court. Could we not assist the process this evening by providing an opinion—and, one hopes, siding with Lord Hope, the most senior judge in Scotland, who believes that a more liberal interpretation of the law is required?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

As I said in my opening remarks, Lord Hope's judgment has been clarified by a five-judge bench of the High Court which overruled the judgment in Church v. Her Majesty's Advocate. That decision is the one that will apply.

My right hon. Friend the Secretary of State decided to set up a representative body—

Photo of John McFall John McFall , Dumbarton

I thank the Minister for his indulgence in giving way to me again. He says that the position has been clarified, but if he looks at the judgment of those five judges he will note that, according to them, Parliament's intentions were clear. On 5 June 1980, Parliament devoted only eight minutes to the 17 pages involved. Its intentions were far from clear—and clarity from Parliament is cried out for. That is the main issue.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

First, this is a matter on which the courts must interpret the Act as it now stands and they have done that in the five-judge bench of the High Court. As to whether any amendments are necessary, this particular subject is under consideration by the Sutherland committee and we will consider very carefully indeed any representations that they make to us.

Sir Stewart Sutherland is the principal of Edinburgh university, and he is looking at these issues in considerable depth. I am a little surprised that the hon. Member for Dumbarton should seek to pre-empt the committee's work. The amendment has not been drafted in the light of the careful consultation which is necessary and which the committee is bringing to the complex issues involved.

We have already given an undertaking to respond to the Sutherland committee's recommendations as quickly as practicable, and I therefore hope that the hon. Gentleman will not press the amendment.

Photo of John McFall John McFall , Dumbarton

I thank the Minister for those comments, but there are two issues. First, there is the dispute between Lord Hope, Lord Ross and others. Clarity is required on that.

The second issue is the Sutherland committee. The Minister takes refuge in the fact that the Sutherland committee has been established and will report in the summer of 1996. Meanwhile, the Criminal Appeal Bill is going through the House. There will be a miscarriage of justice body for England and Wales but nothing for Scotland.

The fact that the Sutherland committee reports in 1996 will probably ensure that nothing will be done for Scotland this side of a general election. I and many others in Scotland do not think that the present situation should prevail beyond the next general election. We are looking to the Government to speed things up. It was quite absurd to use the time scale of summer 1996 in the first place. It could have been done much more speedily.

Given that the committee will report in summer 1996, what guarantees can the Minister give that the Government will be up and running immediately to deal with the situation? The miscarriages, and alleged miscarriages, of justice in Scotland at the moment are a running sore. The Government have to attend to that matter. It is no use having recourse to the Sutherland committee when its report date is as far away as 1996. Something more urgent needs to be done now. It is with that in mind that we have tabled the amendments.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I can confirm that the Sutherland committee will report before or by July 1996. The chairman has said that it will report as soon as possible and that those matters will, of course, be dealt with urgently.

The definition of "reasonable" is very much a matter for interpretation by the courts, as it has been over the past century. It is not for us to speculate on what might have been the parliamentary intention earlier, when the particular provision was passed.

Photo of John McFall John McFall , Dumbarton

I thank Minister for that reply. He is really saying that we do not know what Parliament had in mind in 1980, but it is certainly none of our business in 1995 to decide what Parliament had in mind in 1980. Frankly, that is a most inadequate answer, and something needs to be done.

That one word "reasonable" is causing the problem. Something needs to be done about it. If the Sutherland committee reports by July 1996, will the Minister give a commitment that the recommendations will be implemented as soon as possible thereafter, by October 1996, in the new parliamentary Session?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

We will act as soon as possible. I can assure the hon. Gentleman that the Secretary of State takes these matters very seriously, as he does all issues involving justice where it is alleged that the person convicted has not committed the crime and fresh evidence has allegedly been made available.

Amendment negatived.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I beg to move amendment No. 1, in page 34, line 24, at end insert—

  1. '(6A) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
  2. (6B) Where the arguable grounds of appeal are specified by virtue of subsection (6A) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
  3. (6C) Any application by the appellant for the leave of the High Court under subsection (6B) above—
    1. (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
    2. (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'.

Mr. Deputy Speaker:

With this, it will be convenient to discuss also Government amendments Nos. 2, 62, 4 and 63.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

Clause 42 introduces a new requirement for leave to appeal. When these provisions were debated in another place, it was noted that where leave to appeal was granted, the appellant would be allowed to advance all grounds of appeal contained in the note of appeal even if the single judge had considered certain grounds to be frivolous and unarguable.

The amendments also ensure that where the single judge or the High Court identifies the arguable grounds for appeal not contained in the note of appeal it shall be competent for the appellant to found aspects of the appeal on those grounds of appeal without requiring further leave from the High Court. This matter was also debated in another place. I am pleased to be able to clarify the arrangements.

Amendment agreed to.

Amendments made: No. 2, in page 34, line 29, at end insert— '( ) After subsection (3) of section 233 of that Act (restriction on arguing ground not in note of appeal) there shall be inserted the following subsection—(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (6A) of section 230A of this Act.".'. No. 62, in page 35, line 36, at end insert—

  1. '(6A) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted.
  2. (6B) Where the arguable grounds of appeal are specified by virtue of subsection (6A) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the stated case but not so specified.
  3. (6C) Any application by the appellant for the leave of the High Court under subsection (6B) above—
    1. (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
    2. (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'.
No. 4, in page 35, line 41, at end insert— '( ) After subsection (3) of section 452 of that Act (restriction on arguing ground not in stated case) there shall be inserted the following subsection—(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (6A) of section 442ZA of this Act.".'. No. 63, in page 36, line 35, at end insert—
  1. '(5A) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
  2. (5B) Where the arguable grounds of appeal are specified by virtue of subsection (5A) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
  3. (5C) Any application by the appellant for the leave of the High Court under subsection (5B) above—
    1. (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
    2. (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.'. —[Lord James Douglas-Hamilton.]