This briefing discusses the circumstances in which corporates can commit crimes in England and Wales, setting out recent developments and proposals for reform.
The Criminal Cases Review Commission (Information) Bill is a Private Members’ Bill presented to Parliament through the ballot procedure on 24 June 2015 and due for its second reading on 4 December 2015. The Bill’s sponsor is William Wragg MP. It enjoys cross-party and Government support.
The proposed extension of powers
The Bill’s provisions would allow the Criminal Cases Review Commission (CCRC) to require the production of documents and other material so that it can obtain them from persons employed by or serving in private bodies.
The CCRC is an independent public body set up under the Criminal Appeals Act 1995 to investigate possible miscarriages of justice in magistrates’ courts and the Crown Courts of England, Wales and Northern Ireland, and to refer convictions and sentences to the relevant appeal court for a new appeal. Its jurisdiction was extended by the Armed Forces Act 2006 to cover the Court Martial and the Service Civilian Court.
Section 17 of the Criminal Appeals Act 1995 provides for a wide ranging power to obtain documents from public bodies as part of its investigations. Where the CCRC believes that a public body has possession or control of any material which may assist the CCRC in the exercise of its functions, it may require the material to be produced, may take it away or may direct it be preserved without alteration until further direction.
There is no corresponding power in relation to documents and other material held by private bodies. The Bill seeks to address this lacuna.
The need for legislation
The CCRC has long complained it has no power to obtain documents or materials from private bodies. It draws a contrast with the Scottish Criminal Cases Review Commission, which has enjoyed such a power from its inception. The chairman of the CCRC, Richard Foster, told the House of Commons Justice Committee that “you can be confident that there are miscarriages of justice that have gone unremedied because of the lack of that power.”
The privatisation of various criminal justice bodies, including the Forensic Science Service, has put much material beyond the reach of the CCRC.
The Justice Committee’s 12th Report of Session 2014-15 recognised the pressing need for the proposed power:
- The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support. Successive Governments have no excuse for failing to do this and any further continuing failure is not acceptable.
- It should be a matter of great urgency and priority for the next Government to bring forward legislation to implement the extension of the CCRC’s powers so that it can compel material necessary for it to carry out investigations from private bodies through an application to the courts. No new Criminal Justice Bill should be introduced without the inclusion of such a clause. Our successor Committee should monitor the progress of this to ensure that it happens promptly, and should continue to put pressure on the Government if necessary.
The Committee found the reliance placed on a Private Members’ Bill for ‘crucial legislation’ to be unsatisfactory given the ‘great difficulties’ such bills face in securing passage.
In its Business Plan for 2015-16 the CCRC welcomed the Committee’s recommendations.
The Government’s response
In its response to the Justice Committee’s report the Government recognised the current situation amounts to a ‘legislative anomaly’. It announced its support for the Bill and promised to look for another suitable legislative opportunity to extend the CCRC’s powers if the Bill does not succeed.
The proposed power
The Bill would enable the CCRC to seek an order from a judge of the Crown Court requiring a person in the private sector to give the CCRC access to documents or other material in that person’s possession or control.
As with the power to require materials in the hands of public bodies, the proposed power would apply notwithstanding obligations of secrecy or other limitations on disclosure.
Territorial extent and application
The provisions of the Bill would extend to England and Wales and Northern Ireland.
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The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021 was introduced in the House of Commons in March 2020. It was introduced in the House Lords unamended in November 2020. The Lords made a number of amendments and now the Bill is in a period of ping pong. The Commons will consider the latest Lords amendments on 27 April 2021. This paper has been updated accordingly.