Clause 78 — Authorisation of Investigations

Criminal Justice Bill – in the House of Commons at 5:16 pm on 18th November 2003.

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Votes in this debate

Lords amendment: No. 100.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move, That this House
disagrees with the Lords in the said amendment.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to take Lords amendment No. 101 and Government motion to disagree thereto.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 5:30 pm, 18th November 2003

One of the important safeguards that the Bill provides in respect of retrials for serious offences is that the personal consent of the Director of Public Prosecutions will be needed to authorise the taking of certain steps by the police to reinvestigate a person previously acquitted of a qualifying offence. The Bill as originally drafted provides that the DPP will not be able to give his consent to reopen an investigation unless he considers that there is, or would be, new evidence as a result of a reinvestigation, and that a reinvestigation would be in the public interest.

To that requirement the Lords wish to add a further requirement that the DPP should seek the leave of a Crown court judge before consenting to a reinvestigation. I consider this amendment unnecessary. The DPP is sufficiently senior and experienced to take a decision on whether to allow the police, in reopening an investigation into an acquitted person, to take the steps set out in subsection (3).

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

But one question is, of course, whether it is in the public interest for the investigation to proceed. Surely the DPP is not an independent judge, in the same way as a judicial figure.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

But perhaps the most important point about independence is that the DPP is sufficiently independent of the police, in terms of his ability to review their request for a reinvestigation. Independence is required, but independence from the police is most important.

The Government consider that the DPP's taking that decision provides the necessary safeguard to ensure that the acquitted person is not being harassed by the police—an issue that Members raised in previous debates. At the reinvestigation stage, it is quite proper for the decision to reinvestigate to be taken by the prosecuting authorities rather than by the courts. Involving a Crown court judge in proceedings at that stage would also make the process more cumbersome. Many layers of safeguards are already built into the exercising of the powers listed in subsection (3). I do not believe that requiring the DPP to secure the leave of a Crown court judge is necessary before a reinvestigation can proceed.

The safeguards on reinvestigation need also to be seen in context. Before an application for a retrial can actually be made, the DPP's consent is required again. He must be satisfied at that stage that there is new and compelling evidence, and that it is in the public interest for the application to be made. The Court of Appeal then determines that application, and it is at that stage that a judicial decision is properly required. As such, I invite the House to disagree to the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This brings us back to a discussion that we had in Committee a very long time ago, in which we told the Minister that in our view, having judicial scrutiny before allowing the process to take place would be an extra and worthwhile safeguard. Such scrutiny would have been an important safeguard in precisely ensuring, as has been suggested, that the public interest and above all fairness, which the judiciary has a special role in ensuring, be taken fully into account. Of course, this process could be unfair and very onerous. It is therefore interesting to note that when the Bill went to the other place, the Lords seemed also to have been exercised and anxious about this issue.

The Minister will be reassured to learn that, because this is a small matter, I do not intend to divide the House on it. If the Government wish to remove the amendment, on their heads be it, but I remain mystified as to why they did not accept it a long time ago. My view has always been that it would provide an important safeguard that would reassure the public and those who will be put through this process—including those who may, of course, eventually be acquitted—that it will be gone through only for good reasons, and that there will be judicial scrutiny throughout; otherwise, the danger is that, even allowing for the independence of the DPP, the perception will be that an individual is being put through an administrative process that is deeply damaging to his liberties, and which involves no proper oversight.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am not one to impugn the DPP or to criticise unnecessarily, but we must not overemphasise his independence—he is head of the prosecution service.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend is right. That is why we tried to put the safeguard into the Bill at a very early stage. It was reading the Bill late at night—not some lobby group—that led me to believe that the amendment would be valuable. I remained puzzled throughout our proceedings that the Government would not accept a proposal that struck me as being so modest and so sensible. The ways of government are sometimes mysterious. I certainly do not wish to deny the Government their Bill on this one issue, so I shall, with some reluctance, keep quiet about it hereafter. I do not know whether their lordships will do likewise—that is a matter for them. I do, however, regret the Government's unnecessary removal of a safeguard that would have been of value.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I share the concerns expressed by Mr. Grieve. I suspect that Liberal Democrat Members may be made of slightly sterner stuff on this issue. We believe that the safeguard is important, if small. I entirely agree with Mr. Hogg that whatever personal merits we see in the Director of Public Prosecutions, and although he is a senior figure who is well capable of taking such decisions, we must recognise that he has one impediment that cannot be avoided—he is part of the prosecution system. As we are dealing with the rights of the individual not to be harassed or otherwise put to inconvenience unnecessarily by an over-mighty prosecution system, the intervention of the judiciary at that point is entirely appropriate.

In previous debates, the Government advanced the argument that judicial review at a later stage is capable of remedying any improper decision on the part of the DPP. That is even more cumbersome than the suggestion in the amendment, and has the considerable disbenefit of being too late to do the job properly. Given that this is an important departure from our previous practice, we want to ensure that the greatest possible safeguards are built into the system. It would be a very small step for the DPP to go to a judge to seek agreement by an ex parte application for an investigation or reinvestigation to proceed.

The noble Lady who speaks for Conservative Members in another place was absolutely right in her arguments, and I have heard nothing from the Minister this evening that persuades me otherwise. Until we hear a cogent argument to the contrary, we should support our noble Friends and others in another place who insisted on the amendment, and await the conclusion later this week.

Photo of Graham Allen Graham Allen Labour, Nottingham North

My hon. Friend the Minister will note that Opposition Front Benchers gave no welcome in principle to this improvement to our law. If it is brought in, I hope that he will not be backward in coming forward in reminding them of that in a year or so, when serious cases such as those that we discussed in Committee—for example, involving child killers who later confess to cellmates—have been brought before the law for retrial.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I find that comment rather ungracious, especially in view of the Opposition's participation in the progress of the Bill. We have accepted throughout that there are grounds for allowing retrial for certain grave offences. We have worked with the Government to achieve a satisfactory outcome, and that has largely been achieved. I am grateful to the Government for that and I hope that this measure makes some small improvement to the criminal justice system. However, given the shortness of time available, I thought that I would concentrate on the issue before the House.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I am grateful that my intervention has prompted the Opposition to put the record straight.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

In my opinion, the Lords got this matter about right. Mr. Heath reminded the House that retrials are a major departure from established principle and practice. We have accepted that they are justified in a limited number of cases, but we must face the fact that the process of a retrial can be extremely oppressive for defendants. My hon. Friend Mr. Grieve rightly pointed out that some of those offenders will be acquitted, but the process of retrial could involve much expense, trouble, concern and anxiety for people who were acquitted at the first trial. Therefore, we should be chary of embarking on a process that could give rise to those consequences.

I do not wish to be unduly critical of the post of Director of Public Prosecution. Indeed, I have no justification for being so, but that does not alter the fact that he is head of the Crown Prosecution Service. As such, the DPP has a vested interest in pressing forward with prosecutions, because that is his function. I am concerned that a director may give his or her consent to a retrial in circumstances that do not wholly warrant it, in part because of the internal pressures in the CPS to secure convictions. The Lords have put in a filter, whereby the application by the DPP has to be considered by an independent judicial figure. That is a filter, but it also drives the DPP to consider carefully the nature of the application that he is about to make and whether or not the evidence on which the application will rest is sufficient to satisfy the criteria. Not only is the provision a filter in itself, but it will also drive the DPP to make applications only in appropriate cases.

I hope that the Lords stick by this measure. If the matter is put to a Division, I shall vote to support the Lords. I know that my hon. Friend the Member for Beaconsfield will not press it to a Division, but others may, and they will have my support.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am grateful to my hon. Friend Mr. Allen for reminding the House of the wider context of our somewhat narrow discussion, which is that in future in those small number of cases that he mentioned justice will be delivered rather than denied, as it would have been in the past. I apologise to Mr. Heath for my lack of cogency, but I see the issue as straightforward. The Bill includes safeguards in relation to this matter. Reinvestigation will require the personal approval of the DPP, who is a senior and experienced individual. He or she is independent from the police, and the Court of Appeal must give its approval if there is to be a retrial.

Photo of Graham Allen Graham Allen Labour, Nottingham North

Any trial is an onerous experience for a defendant, but does my hon. Friend agree that we should not forget how onerous it can be for a victim's family when new and compelling evidence comes forward and they are not allowed to bring the offender to book, however likely it is that that person is guilty?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

As my hon. Friend knows—he was on the Committee and is assiduous in following up such issues—the Bill is about redressing the imbalance in our system in favour of victims. That is a theme that the Home Office is pursuing on several fronts, not least through this Bill.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Member for Nottingham, North made a potent point, but it is irrelevant to the matter that we are considering, which is simply whether judicial approval should be given for the reopening of an investigation. That does not affect the conduct of the reinvestigation—whatever the hon. Gentleman may blather from a sedentary position.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The point made by my hon. Friend the Member for Nottingham, North is important, but I agree with the hon. Member for Somerton and Frome that this is a straightforward matter. I ask the House to disagree with the Lords in their amendment No. 100.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 357, Noes 58.

Division number 375 Criminal Justice Bill — Clause 78 — Authorisation of Investigations

Aye: 357 MPs

No: 58 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly agreed to.

Lords amendment disagreed to.

It being more than three and a quarter hours after the commencement of proceedings, Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

Lords amendment No. 101 disagreed to.

Lords amendments Nos. 102 to 113 agreed to.