(Laurie Elks): This is the second response to the series on consultation that Democratic Audit is editing on ourKingdom.  Laurie Elks is a former member of the Criminal Cases Review Commission and author of Righting Miscarriages of Justice?: Ten Years of the Criminal Cases Review Commission, about the work of the Commission.  Previous articles in this series include Taking Consultation Seriously by Andrew Blick and Emily Hamilton, and Nuclear Consultation: Public Trust in Government by Paul Dorfman.

The Quashing Convictions[1] consultation was issued by the Home Secretary, John Reid, in September 2006 as part of the government’s agenda to rebalance the criminal justice system to favour the rights of victims over suspects. The consultation averred that following the Criminal Appeal Act 1995 it had been too easy for the guilty to overturn convictions at appeal on the basis of legal technicalities.  

The consultation put forward three options for amending the law to prevent the guilty going free on appeal and sought views only on “what form such amending legislation should take” – not the desirability of legislating.  The document was widely circulated to professional legal bodies and the judiciary, with a closing date for responses in December 2006. It stated that a summary of the responses would be published on the Home Office website. A Home Office official – one Christopher Brain – was identified as the person responsible for dealing with questions relating to this consultation. 

The Quashing Convictions proposals were constitutionally significant. They proposed that the convictions of the factually guilty should be upheld even in cases where the trial had been marred by executive misfeasance or illegality.  The paper gave as an example the case of Mullen, convicted of terrorist offences but freed on appeal after it was shown that he had been illegally abducted from Zimbabwe by members of the Secret Intelligence Service, as the sort of conviction which should not be overturned in the future. The intention was to prevent the Appeal Court from interfering in cases of this sort.  The Court had only rarely quashed convictions in the past as a way of expressing disapproval of illegal executive acts -  but the position of Quashing Convictions was apparently that it should never do so in the future.

Quashing Convictions excited an almost universally hostile response from within the legal profession, albeit the extent of the opposition only became clear many months later.  Consultees made three main points:

• The proposals were unnecessary because only very small – and diminishing – numbers of appeals were allowed on the basis of legal technicalities.
• The suggestion that it had been made easier for the guilty to go free on appeal as a result of the 1995 Act was wholly – even perversely – inaccurate.
• The suggestion that convictions which were the outcome of illegal action by the executive should be upheld was wholly novel and constitutionally dangerous. Professor J.R. Spencer of Cambridge University put this point as follows:

To remain the sort of society in which it is safe for the “law abiding majority” to live, the citizens of this country need to be protected not only from being blown to pieces by the likes of Mullen, but also from being convicted and sent to prison after outrageously illegal conduct by the police and the other agencies of the state…If the Government succeeds in its attempt to “rebalance” the Criminal Appeal Act, this will no longer be the case.

Although the government had sought views only as to how the law should be changed, it eventually became clear that the great majority of consultees argued that the proposed reform of the law should not take place in any form.

The Home Office failed to meet Cabinet Office guidelines requiring a summary of responses to be published within three months.  In April 2007, Mr Brain stated in response to inquiry that “the responses are with the Minister – this means they are waiting his final ‘sign-off’. However, in June 2007, the Ministry of Justice, which had assumed responsibility for the Quashing Convictions proposals, published the Criminal Justice and Immigration Bill including clause 26 which was substantially based upon Quashing Convictions.[2]    At this stage the government had not only failed to publish a summary of consultation responses but its press release accompanying the Bill made no reference to the Quashing Convictions consultation (whilst making reference to other background consultations to which it was presumably happy to draw attention).

Over the following three months, officials at the Ministry of Justice stonewalled enquiries as to why the consultation responses had not been published and when (if at all) they would be published in the future. A particular issue was whether the responses would be published before the second reading debate scheduled for October 2007.  Ministry officials declined to give any assurance on this point. An official named Mr Bebbington responsible (in succession to Mr Brain) for the consultation process stated that he was powerless to make officials comply with consultation guidelines. On August 23 he stated:

As consultation co-ordinator I have no power to force the publishers of a consultation document to publish the response to the consultation document within a specific period of the closing date of the consultation.  Although we should as far as possible publish the responses to consultations within three months there are times when this criterion is not met.  I would love to give you a more positive response but all I can do is record that the criterion in the case of the Quashing Convictions consultation has not been met

In September, Clare Dyer, legal correspondent of the Guardian, was alerted to this situation.  Her inquiries showed that the responses to the consultation had been overwhelmingly hostile.  In an article dated 6th October 20073 she wrote:

The government has suppressed for more than six months an overwhelmingly hostile reaction by judges and legal experts to proposals to restrict the appeal court’s  powers to quash convictions. Senior appeal court judges, the council of circuit judges, [and] the Criminal Cases Review Commission . . .   all lambasted the plans in unpublished responses, the Guardian has learned.

Other bodies, including the Law Society, the Criminal Bar Association and the campaigning groups Justice and Liberty, have made their objections public. But the government has ignored Cabinet Office guidelines on publishing the responses to consultations, though the measures are now part of a bill due for a second reading next week.

Two days after this article appeared, the government published a one-page summary of the consultation responses[4].  This conceded that the great majority of consultees opposed the proposals but failed to give any detail to the objections expressed.  Shortly afterwards the Minister of Justice, Jack Straw, stated in the second reading debate:

Almost all the responses were critical of the drafting contained in clause 26. I can therefore tell the House that I am comprehensively reviewing the drafting of clause 26 as it is currently written. I intend to table a replacement, which I hope will meet the major criticisms made and the policy objective behind the clause.

The government later brought forward a revised clause (by now clause 42 of the Bill) by way of implementation of the Quashing Convictions proposals.  The revised clause made some concession to the Mullen issue, conceding that the Appeal Court would not be required to dismiss an appeal if they thought “that it would seriously undermine the proper administration of justice to allow the conviction to stand.” He made no concession whatever  to the widely expressed view that the legislation was unnecessary.  The revised clause was opposed by Conservative and Liberal Democrat members. In the Committee stage, the Lib-Dem MP, David Heath, was moved to remark that the Lord Chancellor had been unable to come up with a single concrete example of a case in which the existing discretion available to the court was not sufficient to deal with the mischief that clause 42 was supposed to deal with.[5]   Finally, on March 5 the government announced that it was abandoning clause 42 in the interests of making progress in bringing the Bill into law.[6]

Jack Straw, when pressed by the Constitutional Affairs Committee to explain why the consultation responses had not been published at an earlier stage stated:

The delay post-28 June was caused by my decision on taking up office to reconsider Clause 26 in the light of the comments made in response to the Consultation Paper.

This reply glossed over the fact that Ministry officials had evaded any commitment to publish responses until the appearance of the Guardian article.  It also begged the question why the consultation responses had not given pause for reflection before the Bill was published.   The Committee however was apparently content with Mr Straw’s explanation and closed its file on the matter. 

Notes

1 http://www.cjsonline.gov.uk/downloads/application/pdf/quashing_convictions_consult.pdf

2 The Bill made some minimal concession to the Mullen point.

3 http://www.guardian.co.uk/politics/2007/oct/06/ukcrime.prisonsandprobation

4 http://www.cjsonline.gov.uk/downloads/application/pdf/Quashing%20Convictions%20Consultation%20Response.pdf

5 For a summary of the Parliamentary response to the proposals see the House of Commons Library research paper 07/93 at http://www.parliament.uk/commons/lib/research/rp2007/rp07-093.pdf

6 See http://www.publications.parliament.uk/pa/ld200708/ldhansrd/text/80227-0002.htm#08022765000076. The Government was anxious to have co-operation from opposition parties in supporting new provisions restraining the Prison Officers Association from taking industrial action.