Anti-social Behaviour, Crime and Policing Bill
(10 years, 10 months ago)
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17:23 - Division on Amendment 94E - Ayes: 245 / Noes: 222 - Amendment 94E agreed.
Lord Pannick
Lord Pannick (CB)
My Lords, Amendment 94E addresses a genuinely difficult problem—that is, the proper test that should be applied to determine whether a person should receive compensation for a miscarriage of justice. Since this is Report, I should report that the debates in Committee demonstrated general agreement, which I share, that the Government are entirely correct to include in this Bill a statutory definition of those cases where compensation should be paid for a miscarriage of justice to secure greater certainty in this area of the law.
I should also report that the Committee stage debates established that there are strengths and weaknesses in each of the two options before the House. The approach adopted in Clause 161 is that compensation should be paid only if a new or newly discovered fact shows beyond reasonable doubt that the defendant was innocent of the offence of which he or she was convicted. The alternative option in my amendment is that compensation should be paid only if the new or newly discovered fact shows conclusively that the evidence against the defendant at trial,
“is so undermined that no conviction could possibly be based on it”.
The amendment has the considerable benefit of using the test which was formulated and applied by the noble and learned Lord, Lord Phillips of Worth Matravers—the then President of the Supreme Court, who I am very pleased to see in his place—at paragraph 55 of his judgment for the majority of the Supreme Court in the Adams case. That paragraph, on page 48 of the Supreme Court document, Decided Cases, states that the test, which is now in the amendment,
“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.
I also draw attention to what was said in the same case—the Adams case—by the noble and learned Lord, Lord Hope of Craighead—who I am also very pleased to see in his place—in support of the test of the noble and learned Lord, Lord Phillips. At paragraph 97 of his judgment, the noble and learned Lord, Lord Hope, said that if a new or newly discovered fact shows conclusively that the prosecution evidence was so undermined that no conviction could possibly be based on it, then it is right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. The noble and learned Lord pointed out that a person against whom there is no sufficient admissible evidence to secure a conviction should not be subject to the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is right in principle that compensation should be payable. These arguments, and others, persuaded the Joint Committee on Human Rights that Amendment 94E would be an appropriate amendment to the Bill.
A third noble and learned Lord, who I am also happy to see in his place—the noble and learned Lord, Lord Brown of Eaton-under-Heywood—dissented in the case of Adams with three of his colleagues in the Supreme Court. The noble and learned Lord, Lord Brown, was concerned that—I summarise his concern, no doubt wholly inadequately—the test applied by the noble and learned Lords, Lord Phillips and Lord Hope, would result in some defendants who were not in fact innocent receiving compensation. My concern with that approach —which is essentially the approach adopted in Clause 161—is that it has never been the role of Ministers or courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent. Our law—the common law—applies a test memorably stated by the distinguished American advocate, Edward Bennett Williams.
He was asked whether Alger Hiss, who was imprisoned for espionage in a notorious case in 1950, was guilty. Mr Bennett Williams replied:
“He should have gotten off”.
I am very doubtful indeed of the wisdom of Clause 161 in requiring Ministers to pronounce on the innocence of people whose convictions have been overturned, especially when the court of criminal appeal, when quashing a conviction, makes no such statement.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment and want to emphasise why it is so important. In the ordinary way, people who are acquitted of crime do not receive compensation for being prosecuted. I make that point because of questions asked of me in relation to this issue before the House. People are not compensated. As they leave court, if a judge has dismissed the case or a jury have returned a verdict of not guilty, they are supposed to be relieved that their ordeal is over and take satisfaction in that. It is rare indeed that they are paid compensation.
What we are here dealing with are miscarriages of justice—situations in which people are convicted and, at a later date, sometimes years later, their conviction is quashed. Compensation is paid in some cases, but by no means all. I assure noble Lords that inside our system it is very rare for an appeal to be successful on a technicality. Our judges are no pushover and they do not overturn convictions very readily. I say that from years of experience of appearing before the Court of Appeal.
When is compensation paid? As we heard from the noble Lord, Lord Pannick, the Supreme Court decided this issue comparatively recently and, in my view, it resolved ambiguity by introducing, in the case of Adams, what we now call the Phillips test. Compensation will be paid only if there is new evidence that casts the case in a very different light. The new fact has to be so significant that no conviction could now safely be based on the evidence taken as a whole. The noble Lord, Lord Pannick, described it well. There is now a consensus on it between the Supreme Court here in the United Kingdom and the European Court of Human Rights. Sometimes we seek to clarify issues in this House when there is some sort of disagreement between those courts, but that is not the case here—there is absolute agreement between those senior courts. I emphasise that this is not about people getting off on technicalities; the test usually comes into play when something has gone badly wrong.
To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law—the common-law system, so beloved of this House and indeed beloved of me. It flies in the face of one of our key legal principles, which acknowledges that it is very difficult for people to prove their innocence. It is very difficult for people to prove that they are innocent beyond reasonable doubt: “Prove that you didn’t do it”; “Prove that you didn’t kill your baby”; “Prove that you didn’t leave a bomb in the pub”; “Prove that you didn’t set that fire”. In a few cases, DNA can prove innocence, and in a few an alibi can be bullet-proof, but I assure your Lordships that those cases are rare.
I have acted in a number of serious cases involving miscarriages of justice and I know the toll—the cost to the lives of those involved and their families, and the cost to the integrity of the system. I acted in the Guildford Four appeal, where three men and a woman were wrongly convicted of bombings for which they were not responsible. I know because I acted for the people who were responsible for those bombings in a completely different case. The convictions of the Guildford Four were a travesty, but a statement came to light—17 years too late, I am afraid, but after years of assiduous work by wonderful solicitors—which showed that the case was profoundly flawed. A statement had been deliberately buried and it provided an alibi which, when examined, caused the unravelling of the whole case and threw into a clear light some of the other areas of evidence.
I also acted for a woman called Mary Druhan, who was convicted of arson when she was in her fifties. She came blinking out into the light after 11 years in jail, totally institutionalised, unable to negotiate public transport and incapable of rebuilding her life without considerable help. That is why compensation matters. Her daughter had committed suicide while she was in prison. It was a tragedy. New forensic evidence threw the whole case. In that instance, the wonderful television series that existed then, “Rough Justice”, had done the hard graft of revisiting the case, finding that the fire could not have been started in the way described and that Mary was not in the vicinity at the appropriate time. The series has gone now. It is not the kind of thing that the BBC spends money on any more. It was, it said, “too expensive”, and has been replaced by “Big Brother” and other celebrity-driven programmes of much lesser value.
I chaired the royal colleges’ inquiry into sudden infant death. It involved reviewing the cases of Sally Clark and other women—Angela Cannings and others—convicted of killing their babies. I want your Lordships to try to think of something worse for a mother than her babies dying and her demented state in the face of that loss, and then being wrongly accused of killing her children. I want noble Lords to imagine it happening to their wives or children, for those who cannot imagine it personally.
It is no wonder that Sally Clark, who had been a practising solicitor, did not live long after her convictions were quashed. Again, vital evidence was somehow not disclosed to the defence. People who should have known better jumped to conclusions because of the very hyped-up public feelings about child abuse. On a previous occasion when we discussed these matters the name of Sir Roy Meadow was mentioned, as though the statistical evidence was the thing that caused the overturning of that conviction. It was not. It was about the discovery of a slide showing that there was infection on the lung of one of those babies and it was felt that knowing more about infant lungs meant that that baby may well have died of natural causes. One of the problems we discovered in holding that inquiry was the shortage of child and infant pathologists—pathologists who were used to dealing with babies, as distinct from adults. Usually forensic pathologists had experience in dealing with adults who died rather than infants, so the expertise was not being applied.
Cases go wrong, which is why there is a folly in slashing legal aid which allows really experienced counsel to conduct the hardest cases. When a case has gone wrong and new material comes to light which changes the whole complexion of the case, and it becomes clear that a jury in possession of all the evidence would have reached a different verdict, those who have suffered should have some compensation. To expect them to prove that they were innocent beyond reasonable doubt is to add to the injustice they have already suffered. Miscarriages of justice lead to ruined lives. Families are destroyed. People often end up without partners when they come out of prison. They lose jobs and homes. The mental despair and anguish is never fully resolved. That is why they need to have such real help afterwards. People’s lives never go back to how they were. This is where we find, as a decent society, that we have to make amends.
I recommend to this House a current bestseller by Robert Harris, “An Officer and a Spy”. It is brilliantly evocative of the Dreyfus affair—the disgraceful conviction of a Jewish army officer in France about 100 years ago. These cases almost always happen against a backdrop of hyped-up public fever. That book evoked the horrors of false conviction and the ensuing unwillingness of people in authority who got it wrong to admit that the system had gone wrong. Systems go wrong. It is one measure of a society’s values that it is able to put what has gone wrong right, and it should also seek to repair the horrible consequences of wrongful conviction. That is why this amendment should be supported. I call on this House to do the right thing.
Baroness O’Loan (CB)
My Lords, the question before your Lordships’ House in this amendment is very simple. Should we—indeed, can we—as a House agree to Clause 161 as it stands? If we do, the result will be that to get compensation for a wrongful conviction—a miscarriage of justice—the person wrongfully convicted will have to be able to prove beyond reasonable doubt that he is innocent of the crime for which he was convicted. Not only must he prove this, he must prove it on the basis only of new or newly discovered facts that led to the miscarriage of justice.
England and Wales, and indeed the whole of the UK, have long accepted that no one has to prove their innocence of a criminal offence; it is sufficient that there is reasonable doubt about whether they committed a crime. If such reasonable doubt is present, they should be acquitted. This principle, which evolved over the centuries in English common law, is one of the bulwarks of our criminal legal system. It has been adopted in many countries across the world and was reflected in Article 11 of the Universal Declaration of Human Rights, drafted, as we all know, largely by British legal experts, and subsequently in Article 6 of the European Convention on Human Rights. The presumption of innocence is an important protection not just here but across the world.
There are cases in which evidence is fabricated or a confession secured in breach of the law, or even where the scientific evidence presented to a court can subsequently be shown to be inaccurate. In such circumstances, a person may have been convicted. Their only route after exhausting the appeals process is to go to the Criminal Cases Review Commission, which has the power to refer such cases to the Court of Appeal for consideration.
Lord Wigley (PC)
My Lords, I, too, support Amendment 94E, moved by the noble Lord, Lord Pannick, which would correct a provision in the Bill which could make it almost impossible for those who have suffered miscarriages of justice to gain compensation for their time spent in prison.
At present, the test for compensation in cases where a miscarriage of justice has taken place is that a jury could not, beyond reasonable doubt, find them guilty of the crime, perhaps because of new evidence that has come to light or evidence that has been disproven. Looking to the case law which forms the basis of the current test, Lord Bingham argued in the Mullen case that, based on Article 14.6 of the International Covenant on Civil and Political Rights, a miscarriage of justice occurs not only when a person can be proven to be innocent but in cases where it is possible to say that an individual has been wrongly convicted because of,
“failures of the trial process”.
The Supreme Court adopted this view in the Adams case. The Divisional Court stipulated in the Ali case that an individual should be required to prove,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
If Clause 161 of the Bill before us today is passed unamended, it would return the law to a narrower definition of miscarriages of justice, such that the individual has to prove that,
“the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
This places a heavier burden of proof on the individual, as he or she must prove their innocence of a crime years or perhaps even decades after that crime has been committed and when they have already served a portion of their sentence. This would result in individuals who have already suffered wrong at the hands of our justice system being denied access to compensation for that wrong. In practical terms, it would be virtually impossible for these individuals to prove their innocence since they are in effect being asked to prove a negative: that they did not commit acts that would have made them guilty of the offence.
Justice has pointed out that the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward would not have satisfied the innocence test proposed by the Government. It is also worth remembering that the rule of thumb when awarding compensation in these cases is that the individual should expect to receive roughly the same amount as they would have missed out on in lost earnings for the time they spent in prison. The Bill would impoverish these wronged individuals and that, surely, cannot be right. Amendment 94E, which I am glad to support, would instead reinsert the test currently used by courts in determining whether a miscarriage of justice has occurred; that is, that the evidence against the person at trial is so undermined that no conviction could possibly be based on it.
I remind noble Lords that the presumption of innocence is a long-standing principle of our criminal justice system. As Liberty has said, it is a key safeguard. For in cases where the state prosecution cannot provide evidence that proves beyond reasonable doubt that a defendant is guilty, a court cannot convict that individual of an offence. Liberty says:
“The criminal law, through the presumption of innocence, accepts that sometimes individuals will not be convicted even though it is not 100% certain that they were innocent: it is guilt that must be proven”.
If the Government introduce this highly significant change to our criminal justice system, it will undermine this fundamental principle, since individuals would never have had to prove their innocence in the original criminal trial. I urge noble Lords on all sides of the House to support Amendment 94E and to signal to the Government that they cannot introduce such a reckless change.
Lord Phillips of Worth Matravers (CB)
My Lords, it will occasion no surprise that I support this amendment, nor perhaps need I declare my obvious interest as the author, in my judicial capacity, of the definition of miscarriage of justice that it supports.
The amendment has been recommended by the Joint Committee on Human Rights, which has advanced two reasons for supporting it. The first and lesser reason is that, in determining whether there has been a miscarriage of justice as defined in the amendment, the Secretary of State, or the courts in reviewing her decision, will not have to infringe the presumption of innocence that is required by Article 6.2 of the European Convention on Human Rights. This is not true of the definition proposed in the Bill. The second and more compelling reason is that the definition in this amendment better meets the requirements of justice than the definition proposed in the Bill.
I will deal first with the effect of Article 6.2 of the human rights convention. Article 6 provides for the right to a fair trial. Article 6.2 provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
On the face of it, this is no more than a rule of criminal procedure that has long been part of our law: the burden of proving guilt is on the prosecution. Indeed, the Strasbourg jurisprudence recognises that the primary effect of Article 6.2 is to impose this procedural rule. But the Strasbourg court has identified what it has described as “a second aspect” of Article 6.2, which applies to protect individuals after they have been acquitted in a criminal trial. Shortly summarised, the second aspect prohibits public officials and authorities, including courts, from suggesting that a person who has been acquitted of a criminal charge is, or may be, guilty none the less.
Lord Hope of Craighead (CB)
I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.
There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.
The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,
“shows conclusively that there has been a miscarriage of justice”,
the person should,
“be compensated according to law”.
There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.
I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,
“to prove innocence … is alien to our system of justice”.
Our methods do,
“not provide a forum in which”
that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.
There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.
Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.
Baroness Hamwee (LD)
My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.
As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.
Lord Cormack (Con)
My Lords, the last three-quarters of an hour has proved two things to me. One is what an immense privilege it is to be a Member of your Lordships’ House and to listen to those who have true and deep knowledge of the subject; the other is how dangerous it is sometimes to listen to the debate when one has come in with a completely open mind. What I have heard this afternoon has demonstrated to me that it will have to be a very powerful and convincing answer from my noble friend, whom I welcome to the Front Bench, if I am to be persuaded to support the Government on this.
I can claim no legal knowledge. I can, however, draw on 40 years in the House of Commons, when, during most of that time, I had two prisons in my constituency. I used to hold surgeries in one of those prisons and met many of those who had been convicted. In almost every case, it seemed to me, whether the punishment was exactly accurate or not, they were deservedly punished. However, that was not always the case. I came across one or two cases, one of which I took to the Criminal Cases Review Commission under the great Professor Zellick—this country owes him a great deal for what he did. There were cases where I knew in my bones, as they say, that the people concerned were not guilty of the offence for which they had been imprisoned.
There is nothing worse that a society which bases itself on the rule of law can do than to send someone to jail, to incarcerate someone, for a crime of which he is not guilty. I often quote the old adage which will be familiar to every one of your Lordships: it is far better that a guilty person goes free than that an innocent one is imprisoned.
As I understand it from the erudite and persuasive speeches to which we have listened, we are talking about how we treat individual human beings and how we, as a society based on the rule of law, deal with those who successfully appeal against their convictions. No one can measure in financial terms the anguish, the destruction of life, that incarceration for a crime one has not committed inflicts not just on the individual concerned but, in the case of one prisoner I have in mind, his family—his children and wife. His marriage was ruined, his career was destroyed, his business was destroyed. You cannot adequately compensate for that. You can have laws which make it possible in some tiny measure to recompense for the anguish that society has inflicted on the unjustly imprisoned person.
What I have heard this afternoon makes me utterly convinced that it should not be up to that individual to be able to demonstrate beyond any doubt that he or she is innocent. After all, in some cases—one or two have been cited this afternoon—that person will have been in prison for a decade or more. Most of the material witnesses to the event may be dead or have dementia, or something. How can you prove innocence? If the conviction is so unsafe as to restore to life—one thinks of The Tale of Two Cities—someone who has been imprisoned for a very long time, we should err on the side of generosity and not place further tests on them.
We have heard from some of the most eminent lawyers in our land this afternoon. They have spoken with quiet passion but total conviction and I believe that we should heed what they have said. I hope that my noble friend, who is newly on the Front Bench, but very deservedly so, will be able to show that he has reflected and that we will be able to make some real progress by not altering the law in the way currently proposed but heeding the wise words of the amendment moved so eloquently by the noble Lord, Lord Pannick.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, as your Lordships already know, I was one of the minority of four to five in the Supreme Court in Adams in 2011, and I support the Government in their efforts here to give effect to our minority judgment. I recognise that in the light of the speeches in the House this afternoon I am now one of an endangered species. However, the truth is that four of us reached a clear view on this, including the then Lord Chief Justice, the noble and learned Lord, Lord Judge, who unhappily cannot be in this place today. As the noble Lord, Lord Pannick, said, this is a difficult issue and I do not suggest that the majority reached an absurd or impossible view. I suggest that it was wrong but, right or wrong, that is not now the question. The question is: what does the House think is the appropriate approach to the question of compensation for miscarriage of justice?
It is critical to bear in mind that in the course of this debate we are talking not about criminal justice or the presumption of innocence, or about whether people who cannot at the end of the day be shown beyond all reasonable doubt to be guilty should go free. Of course they should and the noble Lord, Lord Cormack, is right to say that it is better that 10 guilty men go free than that one innocent man be imprisoned. All that goes without saying but we are concerned here with monetary compensation. The obligation under Section 133 of the Criminal Justice Act, and under the international convention to which that gives effect, is to compensate only in a very limited and narrowly circumscribed group of cases. It is not all those who, having been imprisoned, are ultimately set free and presumed innocent; far from it.
Compensation is not paid and even under the amendment proposed by the noble Lord, Lord Pannick, would still not be paid, for example, to those who have been in custody, perhaps for a very long time while awaiting trial or during a trial, and are then acquitted. Nor is it paid to those who are freed only when an appeal, perhaps many months later even though it was brought in time, comes to be allowed. Nor is it paid to those whose appeal comes to be allowed not because of newly discovered facts but rather, for example, because of some serious misdirection by the judge at trial or because the judge wrongly admitted evidence, even if they have been incarcerated for many years. Very importantly, nor is it paid—and it is apparent to me that not all your Lordships fully understand this—in cases where an appeal, possibly after many years, comes to be allowed because the newly discovered facts have created a doubt as to whether the original jury, with these fresh facts in mind, would still have convicted the accused. I know that the noble Lord, Lord Pannick, clearly recognises that but certain things said suggest that others do not.
The Joint Committee on Human Rights, in its recent second report, published just a fortnight back, suggests in paragraph 73 that under the test of the noble Lord, Lord Pannick, compensation would have been granted in Sally Clark’s case. That is the tragic case, as I wholly accept, about which the noble Baroness, Lady Kennedy of The Shaws, spoke so passionately both today and at Second Reading. Having now read the detailed judgment in that case, and indeed the commentary on it in the other case of Meadow, it seems to be entirely plain that compensation would not—I repeat, not—have been paid to Sally Clark under the test of the noble Lord, Lord Pannick. Notwithstanding the doubts about the value of Professor Meadow’s evidence that emerged quite early in that case, Sally Clark’s first appeal was rejected by the Court of Appeal on the basis that the evidence against her remained overwhelming. There then came to light further fresh evidence—again, as referred to today by the noble Baroness, Lady Kennedy—regarding certain biological tests on one of the two children. That, said the second Court of Appeal, could—I repeat, could—have affected the jury’s verdict. It did not say that no jury could possibly have convicted in the light of it. With the best will in the world, I suggest that that would not have led to compensation in her case.
Compensation is designed only to compensate those most obviously and conspicuously wronged, apparent to all. They will have been incarcerated the longest, which is why it applies only in respect of an appeal out of time, and, if the Government’s approach is accepted, they will have been shown to be truly innocent and indeed that would have been recognised to have been so if only the fresh facts such as DNA evidence had come to light sooner rather than later.
Baroness Kennedy of The Shaws
My Lords, I really must correct the noble and learned Lord. Perhaps reading a commentary or returning to published facts about the case and reading a shorthand account of it will not give one the proper understanding of what the evidence was that allowed Sally Clark’s appeal. I chaired an inquiry in which that evidence was placed before us. Medical evidence—slides showing the state of an infant’s lung condition—was never disclosed, and it was never explained why that was never disclosed at the time of trial. There was no doubt that it put a completely different complexion on the views taken by all those dealing with this case medically, and the case turned on medicine. I am afraid that the noble and learned Lord is not right in the description that he gives of why this case was overturned.
Lord Brown of Eaton-under-Heywood
I am of course enormously reluctant to take issue with the noble Baroness because she was in the case. I have here the transcript of the Court of Appeal judgment in April 2003, extending to 182 pages, by which on the second appeal it finally acquitted Sally Clark, but there it is; I pass to my second point. I hasten to say that these further points will not take quite so long.
Again with regard to the recent second report of the Joint Committee on Human Rights, relating to Article 6.2 of the European Convention on Human Rights, which has already been touched on, I just cannot accept the suggestion that the test proposed here by the Government is incompatible with the presumption of innocence. Not one of the nine of us in Adams in the Supreme Court thought that Article 6.2 had anything of value to say to the case. Today, very fairly, the noble Lord, Lord Pannick, and I think the noble Lord, Lord Phillips, were not putting any particular emphasis on it either.
When refusing a compensation claim, the Secretary of State cannot say, “I think you are guilty after all”, but he can say, “You haven’t suffered a miscarriage of justice such as qualifies you for compensation. Of course your conviction was rightly quashed, you were set free and you are to be presumed innocent, but to qualify for compensation you have to establish more”. That indeed is also the position under the test of the noble Lord, Lord Pannick. The underlying test of a refusal of compensation, even under his formulation, is that you cannot show that the jury would have acquitted you, they might still have found you guilty and indeed the evidence would have justified a conviction. That is the underlying rationale on which you still refuse those eventually acquitted under the test of the noble Lord, Lord Pannick. It is not logical—I am afraid that the European Court of Human Rights is not always infallible —that the one satisfies Article 6.2 but the other does not.
Thirdly, in reality the test that is now proposed by the amendment is, frankly, a fudge, and it has all the uncertainties and disadvantages of a fudge. None of the many counsel who appeared before the Supreme Court in Adams—and they included leading counsel specifically instructed on behalf of that admirable institution Justice, which appeared as interveners in the case—argued for the approach now suggested and, indeed, that the majority of five reached as a sort of halfway house, as they felt, in Adams. It was indeed recognised by the Bar that there was no principled difference between this approach and the approach of compensating all who eventually succeed on their late appeals. As the Joint Committee points out in the same paragraph, paragraph 73, as that in which it refers to Sally Clark, the formulation of the noble Lord, Lord Pannick,
“is narrower than the amendment proposed by Lord Beecham at the Bill’s Committee stage, which was based on the Divisional Court’s modification of Lord Phillips’s test”.
That modification came in a later case, in Ali, and the fact is that there were such problems with the majority’s approach in Adams that it was chosen to modify it. But now it is proposed to restore the majority in Adams. For my part, I respectfully question whether that produces certainty and is more workable than the Government’s test.
I have always made it perfectly plain that I am entirely relaxed about whether under the Government’s approach the claimant has to prove innocence beyond reasonable doubt or on a balance of probabilities, or merely that the Secretary of State now looking at the whole case in the round is properly satisfied that he is being asked to compensate someone who is truly innocent. One of the plain troubles with the proposed amendment is that some—not many, I accept, but some—of those who are indeed undeserving will be compensated often to the tune of very substantial sums, hundreds of thousands of pounds it can be. I gave instances of this at earlier stages of the Bill and I do not propose to repeat them now. The fact is that there are cases which eventually succeed on appeal but there is other evidence or circumstances where, although this test would be satisfied, nobody really would regard the person as truly innocent.
My fourth and final point is just this. Before we came to decide the case of Adams there had been in this House, while we still heard final appeals here, the case of Mullen. The noble and learned Lord, Lord Steyn—who, alas, is no longer in his place—held in that case that compensation was payable only when the person concerned was clearly innocent. That was entirely consistent with the explanatory report of an exactly equivalent provision in one of the protocols to the European Convention on Human Rights. The explanatory document report said:
“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.
It is that intention which Clause 161 is designed to give effect to and, for my part, I propose to support it.
Lord Elton (Con)
My Lords, I shall begin with an explanation. I served for three years in the Home Office at the time when Lord Denning and others were at the height of their powers, and I have had a very happy hour listening to what is going on. It was very reminiscent of the past. My sympathy with my noble friend on the Front Bench deepened steadily throughout, but was slightly reduced during the intervention of the noble and learned Lord, Lord Brown.
I ask my noble friend simply this. First, when he comes to reply, will he confirm what has been asserted, that if the information described in the amendment had been available before the case was brought, the case would not have come to court? Secondly, is there any other circumstance, except that which has just been discussed, in which a British citizen is required to prove their innocence in the criminal law? Finally, am I not right in thinking that if my first question is answered with a yes—in other words, the case would not have been brought—surely at least the second leg of the intervention by the noble and learned Lord, Lord Brown, would fall because no jury would have had to give an opinion?
Lord Brennan (Lab)
My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.
My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was an innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.
Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.
Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.
In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.
Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.
That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.
Lord Cullen of Whitekirk (CB)
My Lords, I shall say something briefly about the reasons put forward by the Government in the past for the amendment to the law which is sought to be effected by Clause 161. In fact, as far as I can see, they have put forward two different explanations for this change in the law. The first is that there is said to be a doubt as to how the category of cases recognised in Adams should be formulated. I mention that in case the point is renewed again today. In his letter to the chairman of the Constitution Committee of this House, dated 11 November 2013, the noble Lord, Lord Taylor of Holbeach, said that there was a doubt created by the later decision of the Divisional Court in the case of Ali in explaining the effect of Adams. However, the formulation adopted by the court in Ali was rightly criticised at the Committee stage of this Bill. In any event, if there were a doubt as to how the category should be formulated, it is odd, if not extravagant, to deal with that doubt by getting rid of the category altogether, which is the effect of this proposed amendment to the law.
The second explanation, to which all the speeches today have been directed, is to do with whether one course or the other should be taken, with the Government preferring the narrow approach. As the noble Lord, Lord McNally, said in Committee:
“We do not believe that it is necessary to pay compensation more broadly than this”.—[Official Report, 12/11/13; col. 704.]
No doubt, Parliament can overrule a decision of the Supreme Court, but the question is whether it is appropriate that it should do so. I entirely agree with the eloquent speeches made today in support of the amendment.
Lord Beecham (Lab)
My Lords, the whole House, and perhaps more importantly, our whole system of justice, is deeply indebted to the leading lawyers who have addressed us today, noble and learned Lords who have served in the highest judicial offices and others who have practised the law in the areas that we are concerned about. We are equally indebted to the one non-lawyer who has spoken in this debate, the noble Lord, Lord Cormack. The humanity and power of the case that he has put has informed the debate in a slightly different way, and one that I very much welcome.
The rationale for the Government’s proposals on compensation for those who have suffered miscarriages of justice is set out in the impact assessment that they published in May 2013 under the elegant rubric of “Other key non-monetised benefits by main affected groups”, which states that the narrower test—that is, that contained in the Bill—
“is likely to result in fewer unmeritorious claims as a result of the greater clarity of the test”.
This assertion rests on two flawed premises. The first relates to the term “unmeritorious claims”, since the effect of the Bill would be to, and is clearly intended to, render claims unmeritorious by virtue of failing the very test that the Bill imposes—that is to say what may now be justiciable ceases to be so because of the new requirement to prove innocence beyond reasonable doubt. Thus we have, in effect, a circular justification.
The second defect lies in the bland assertion that the test supplies greater clarity. But as I, and others more learned than I could claim to be, pointed out in earlier debates on this issue, the law is clear. It was established by the Supreme Court in the Adams case, albeit by a narrow majority, and encapsulated in the judgment of the noble and learned Lord, Lord Phillips, reflected exactly in the wording of this amendment. The Supreme Court is not conducted on the model of Lincoln’s cabinet, in which it may be recalled that a proposition which was opposed by every member save the President passed only on the latter declaring “the Ayes have it”. The decision was a decision of the Supreme Court. The Supreme Court has clarified the law.
The Adams case was followed by the Ali case in the Court of Appeal in which, quoting Adams, Lord Justice Beaston declared that,
“it is therefore now clear that the concept of miscarriage of justice under s 133 (of the Criminal Justice Act 1988) is broader and does not only cover those who show they are demonstrably innocent”.
I add, in parenthesis, as I said in Committee, and as the noble Lords, Lord Wigley and Lord Cormack, said today, that proving a negative will often be impossible. Those words were echoed by the noble Lord, Lord Brennan, whose experience, I respectfully suggest, is particularly relevant to the deliberations of today and to the outcome of this debate. It is true that the Ali case offered a somewhat different form of words, which I found seductive enough to adopt in the amendment I moved in Committee, but, of course, the formulation of the Supreme Court takes precedence. Having, as I said I would, given further consideration to the matter, I am content to support the amendment of the noble Lord, Lord Pannick, which would enshrine in statute the essence of the Adams judgment. I fear that the Government—before the Minister joined them—have sought to perpetrate the parliamentary offence of attempting to obtain legislation by false pretences. I hope that he will not make himself an accessory to the crime.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am conscious that my noble friend Lord Cormack has set me a considerable task. This has been a highly impressive debate and it is a privilege to be responding to it on behalf of the Government. The issue raised by the amendment was the subject of detailed examination in Committee in your Lordships’ House and of extensive comment at Second Reading. Sadly, there was no equivalent debate in the other place. I thank all noble Lords who have taken part in this debate but hope that the House will forgive me for singling out noble and learned Lords—judges who have grappled with this very issue in a judicial capacity. The House will be much the poorer when we can no longer have the advantage of their presence to enrich our debates.
Noble Lords did not speak altogether with one voice, and that is not surprising. What is beyond dispute is that the identification of a clear test has proved elusive, despite the exertion of great intellectual endeavour on the part of the judges. The clause unamended provides that clarity which has been so far absent.
The concept of a miscarriage of justice is not a simple one and, as has been explained, has been left open to interpretation by the courts since the statutory scheme was first introduced in 1988. This has resulted in the lack of clarity to which I referred, leaving applicants in uncertainty and the Government susceptible to frequent unsuccessful legal challenge, and the associated financial implications, with the taxpayer footing the bill.
Since the debate in Committee, the Joint Committee on Human Rights has published its latest report on the Bill, to which there has been reference during the debate, which included the JCHR’s views on Clause 161. That committee and those noble Lords who have put their names to the amendment propose that the Bill be amended to remove the reference to “innocence” in the proposed statutory test for a miscarriage of justice and to enshrine into law wording similar but not identical to the category 2 test formulated by the noble and learned Lord, Lord Phillips, in the Supreme Court in the case of Adams.
The Government welcome the JCHR’s acknowledgment that the dependence on case law should cease and that legislation is now required to provide clarity where currently there are misconceptions. Although we believe that the definition developed by the Supreme Court in the Adams judgment is capable of more consistent application than that developed by the Divisional Court in Ali, it is still open to a range of interpretations. This is clearly indicated by the Divisional Court’s decision to hear five lead cases in October 2012 arising from a number of legal challenges made against the Secretary of State’s interpretation of the Adams definition. This hearing led to the court’s judgment of 25 January 2013 in Ali and others. The court upheld the Secretary of State’s decision to refuse compensation in four of the five cases. Three of those cases were back in the Court of Appeal in December and the court’s judgment is awaited.
As well as the three cases currently before the Court of Appeal, the Government are aware of a further 13 challenges that await a ruling from the courts. Very, very few of the previous challenges to the Secretary of State’s decisions on this type of case have succeeded.
We believe that the definition proposed in Clause 161 is a better, clearer and fairer way of ensuring that those who have truly suffered a miscarriage of justice are identified and compensated. This will take us back to the straightforward test that was successfully operated between 2008 and 2011—a period that spanned part of the life of the previous Government as well as this one. That being so, we are satisfied that it is a perfectly proper test to enshrine in law.
In the light of its recent case law, it is clear that, while the presumption of innocence is engaged, it is not the substance of the test that concerns the European Court of Human Rights but the way in which decisions are expressed—something referred to by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Phillips. In this context, the European Court of Human Rights appears to be somewhat more concerned with form than substance. It is not for the Secretary of State to adjudicate on whether someone is guilty or innocent—that is a matter to be determined by the courts. The question before him is whether they suffered a miscarriage of justice and are therefore entitled to compensation, or money.
Through this clause, the Government are seeking to determine, robustly and clearly, what will amount to a miscarriage of justice, in a way which is in accordance with our international obligations and in a way that the man or woman on the street will understand. Therefore, when the new fact on which a conviction is overturned shows that the applicant is innocent beyond reasonable doubt, they should be, and will be, compensated. There is no question of applicants for compensation having to prove their innocence; nor is this an issue of the Government seeking to pay less in compensation.
I should stress that the Government remain firmly of the view that the provision in Clause 161 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. We have further set out our thinking on this in our response to the most recent JCHR report, which we sent to the committee last week. In short, it does not follow that simply having “innocence” as the touchstone for compensation where a new fact comes to light means that any refusal to pay compensation amounts to a violation of the presumption of innocence.
Clause 161 brings much needed and long overdue clarity to the test for determining eligibility, as the noble Lord, Lord Brennan, described it, for compensation for miscarriages of justice. As I mentioned previously, this clause is not about reducing the amount paid in compensation, nor is it about the state seeking to escape its responsibilities, and nor—this is most important to emphasise—has this anything to do with depriving people of their liberty.
Of course, everyone in your Lordships’ House is appalled when any miscarriage of justice takes place and anyone, as it turns out, spends much longer, or any time, in custody when they have not committed an offence. This clause is about the Government’s responsibility to pay financial compensation to those who have not committed the crime for which they were unjustly convicted and have suffered a true miscarriage of justice, and to do so in a straightforward manner that provides clarity to applicants and seeks to avoid unnecessary and costly litigation. In answer to my noble friend Lord Elton, this is not a question of someone having to prove their innocence. The presumption of innocence remains a thread that runs through the criminal law. It has been referred to a number of times during the debate, and nothing about this provision in any sense offends that fundamental presumption, which remains a part of our law.
Baroness O'Loan
My Lords, I apologise for interrupting the noble Lord in his first foray as a Minister. However, in the light of his repeated statements that nobody has to prove their innocence and that the Secretary of State will make a decision based on the facts, can he answer the questions put by the noble Lord, Lord Brennan, about the difficulties of those whose innocence is not proved by the material on which the conviction was quashed but about whose convictions, like those of Sally Clark and others, there are such significant questions that no jury would have convicted?
Lord Faulks
I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.
This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.
The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.
Lord Pannick
My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.
However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.
The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.
I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:
“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—
that, of course, is the test in the amendment—
“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.
Lord Faulks
When someone has had their convictions overturned, the Secretary of State would, as the noble Lord will realise, have the benefit of the Court of Appeal’s reasoned judgment to assist him.
Lord Pannick
As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.
As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.
Lord Faulks
“Abolition of defence of marital coercion
(1) The defence of marital coercion is abolished.
(2) Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of married woman by husband) is repealed.
(3) This section does not have effect in respect of an offence alleged to have been committed before the date on which it comes into force.”
Lord Faulks
My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.
As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.
Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.
Lord Pannick
My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.
It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,
“the law supposes that your wife acts under your direction”,
he replies:
“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.
I am delighted that this truly idiotic provision of English law is at long last to be abolished.
Lord Beecham
My Lords, I join in the welcome to the Government’s acceptance of the amendment of the noble Lord, Lord Pannick. It is nice to have a touch of harmony in these proceedings. I entirely support the abolition of what is clearly an archaic and now defective provision.
However, an issue perhaps needs to be addressed. We have now abandoned, rightly, the law of marital coercion, but there is a question about the operation of the law of duress. That of course applies only in limited cases where extreme violence or even death are threatened by one person against another; if that other then conforms with instructions given under such a threat, there may be a defence. Those would be very extreme circumstances, but there is some concern about the position of—usually but not necessarily exclusively—women in a situation of, for example, domestic violence and abuse of that kind. They might be prevailed upon to commit or assist in committing an offence by a threat obviously much less severe than is required by the law of duress. I wonder whether the Government might look at that, or invite the Law Commission to do so, to see whether there is a case for providing a safeguard for those who may be virtually compelled to take action without this rather archaic background.
In addition to or perhaps separately from that, perhaps some consideration might be given to those who have responsibility for deciding whether to charge or to proceed with the prosecution—or, following a prosecution, to impose sentencing—in situations where, as I say, without the extreme requirements of the present law of duress it is nevertheless apparent that pressure and threats of violence or worse have been brought to bear upon the weaker party in that situation. They might not be parties living together; one can envisage other circumstances. Perhaps that matter might be looked at. Having said that, we certainly support the amendment and are glad that this anomaly will be dealt with.
Baroness Kennedy of The Shaws
I, too, welcome this reform. I think it is important that a female voice is heard saying that this is a good move forward, rather than something that looks as though it has been gifted to us by men; women are happy for this to be happening.
I reiterate what my noble friend just said about the position of women in the circumstance of domestic violence, where the abuse can often mean that they are fearful of not participating in looking after stolen goods or whatever. I have several times recently acted for women who have failed to inform on their husbands in situations of terrorism. Your Lordships will remember that we introduced new law which made it a duty to inform if you are conscious of people plotting or planning acts of terrorism. A number of wives have been prosecuted for that. I have to say that juries do not like it. They often realise, particularly in the circumstances of very powerful personalities in the form of the menfolk and where women have little power, as in some minority communities from which terrorism has recently been emanating, that there has to be understanding of ways in which women are prevailed on and are in terror of going to the authorities. I hope that making this change does not in some way militate against the raising of domestic violence as a background to an understanding of women’s roles when it comes to allegations in the criminal courts.
Lord Faulks
I shall respond briefly. I am most grateful to the noble Lords, Lord Pannick and Lord Beecham, and the noble Baroness, Lady Kennedy, whose voice is always welcome. As she said, it is important to have a contribution from someone of her gender.
I should emphasise that the Government are absolutely committed to ending violence against women and girls in any community. The noble Baroness rightly draws attention to particular communities where that may be a feature. Duress as a defence has been well established for many years and will continue to be available to men and women, regardless of marital status. Of course, the matter will remain under active consideration. The Law Commission last looked at the issue specifically in 1977. If there are further matters, it will no doubt consider them. I thank noble Lords very much for their contribution.
Lord Faulks
“(2A) The Secretary of State may by order make amendments to sections 136 and 142 of the Sexual Offences Act 2003 that are consequential on the coming into force of any amendment of Part 2 of that Act made by the Criminal Justice Act (Northern Ireland) 2013.”
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon (Con)
My Lords, these are minor technical and drafting amendments in respect of the powers to make consequential amendments and make commencement orders. I beg to move.
Baroness Smith of Basildon
My Lords, noble Lords will recall that in Committee, we made the point that injunctions for nuisance and annoyance were certainly very helpful in certain circumstances, but not appropriate in every case. That is now the position adopted by your Lordships’ House, with the amendment to maintain the more serious definition of harassment, alarm and distress and retain the definition of nuisance and annoyance only for specific circumstances, as already provided in housing law, where that definition is entirely reasonable.
In Committee, we argued that ASBOs should be retained because, first, the higher threshold—harassment, alarm and distress—recognises the seriousness of the issue and how devastating anti-social behaviour can be. Secondly, there is the effectiveness and understanding that has grown up around the issue. I appreciate that there were teething problems with ASBOs initially and that there is always room for improvement. But after around 15 years, the various agencies involved know and understand how to use anti-social behaviour orders and could, I think, best advise on any improvements to be made. Thirdly, there is the seriousness of the issue which, given how devastating anti-social behaviour can be, meant that a breach became a criminal offence.
We now await the Government’s response, at Third Reading or later, to the rejection by your Lordships’ House of the definition of “nuisance and annoyance” from every situation. However, the penalties, sanctions and requirements for breach of an IPNA still remain, even with the new definition. It is that area which I seek further clarity on because it is so different from the ASBO penalty. We need an assurance from the Minister that the sanctions will be meaningful and have the effect that the Government claim they will.
The Minister, the noble Lord, Lord Taylor of Holbeach, said in Committee:
“By moving away from focusing solely on enforcement and getting agencies to work with young people, we can get these young people’s lives back on track. Positive requirements”—
part of the IPNA procedure—
“which are absent at the moment, are integral to this move and to the Bill. Front-line professionals not only know about them, they welcome them. When applying for an injunction agencies will consider whether positive requirements can help address the underlying drivers of the anti-social behaviour. They will be better than individual support orders because positive requirements will be more flexible and can last for more than six months”.—[Official Report, 18/11/13; col. 820.]
What causes us great concern is that the Government have already set about dismantling some of the early intervention, and therefore the positive measures, which were in place in part to tackle anti-social behaviour. For example, the Sure Start centres were established to support any family which needed that support or help but have been decimated. Current estimates are that more than 600 Sure Start centres have been lost across England and Wales. I was told last week that even one in Basildon, where I live, and others in other parts of Essex are being closed. Those centres were important tools to help and support families with young children and in the prevention of anti-social behaviour.
One of the early indicators of the Government’s priorities were the cuts to early intervention grants and programmes, so when the Government rely on positive requirements that will accompany the new injunctions it is extremely worrying that they have said, as the Minister said in Committee, that:
“The Bill makes no provision for the funding of costs”.—[Official Report, 18/11/13; col. 823.]
I refer to pages 26 and 27 of the Explanatory Notes, which talk about the injunctions and give examples of what the positive requirements would be. They could be prohibitions: for example, not being in possession of a can of spray paint in a public place. However, the ones I am specifically concerned about and would welcome in most circumstances say that:
“Requirements would be designed to deal with the underlying causes of an individual’s anti-social behaviour and could include, for example, attendance at an alcohol or drugs misuse course or dog training in the case of irresponsible dog owners”.
The notes go on to say that these have to be monitored and that, before applying positive requirements, the court has to receive evidence on the suitability and enforceability of any requirement. That comes with some costs. Unless the Minister thinks that will be cost-neutral, there are costs associated with those requirements.
If the Government are going to replace a criminal sanction with a requirement, positive or otherwise, they have to be confident that these will be effective, be complied with and be monitored to ensure compliance, otherwise the Government will take action. To breach the terms of that injunction’s positive requirements is a very serious matter; it is punishable by prison. However, if the Government do not make it easy for somebody to comply with the positive requirements laid upon them because there is no support, help or funding for that, they will be moving quickly back to a position where a breach of that injunction is imprisonable and becomes a very serious matter. However, it might not be that person’s fault if they are not able to comply because the Government are not providing the funding for it.
I have some questions for the Minister and would like to know whether he can give me the necessary assurances. First, are the funding and resources available for the requirements to be undertaken? Secondly, are they available for the requirements to be appropriately and accurately monitored? Thirdly, are they also available to take action if that injunction is breached?
Unless those reassurances are forthcoming, there is a real danger that whatever the test for anti-social behaviour—whether it is nuisance and annoyance or harassment, alarm and distress—there will be no effective action against those committing such behaviour. We want those assurances because I would hope that in the public interest we all wanted serious measures that tackled anti-social behaviour and for those measures to be effective. Without such guarantees, it would be totally wrong to scrap what exists and start all over again. I beg to move.
Lord Taylor of Holbeach
My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon, for tabling this amendment. It brings us back once again to the real failings of one of the key powers introduced by the previous Government to tackle anti-social behaviour.
This Government have been clear that, in developing our reforms, the police, local councils, social landlords and others must focus their response to anti-social behaviour on the needs of victims and put them first. As part of our consultation on the new powers, we asked victims what they want. They told us three things: first, they want their problem to be taken seriously; secondly, they want an efficient service and quick response; and, thirdly, they want the problem to stop and for it not to happen again. That is what this Government also want. That is why we want to support agencies by giving them effective new powers to do this. However, ensuring that the right powers are available also means removing or reforming the existing powers where we know that they do not work as well they should, particularly the anti-social behaviour order.
Front-line professionals have recognised the ASBO’s failings, and this is demonstrated by the most recently published statistics from the Ministry of Justice. Since 2005 there have been year-on-year falls in the number of ASBOs issued, with 1,329 issued in 2012, a decrease of 6% from the 1,414 issued in 2011 and a decrease of 68% since 2005. That is not because ASBOs have been so effective in preventing anti-social behaviour that they are no longer needed.
I made this point in Committee when the noble Baroness tabled a similar amendment, but it is worth repeating: up to the end of 2012, 58% of ASBOs were breached at least once and just over 43% were breached more than once. If an ASBO is breached, on average it is breached five times. Perhaps even more shocking are the figures relating to young people. As I also informed the House in Committee, the breach rate for under-18s is a staggeringly high 69%. To put it another way, over two-thirds of ASBOs against young people are breached. Those are the statistics. Those are the facts. They are certainly not teething issues, as the noble Baroness, Lady Smith, suggested; the ASBO is a fundamentally flawed device for tackling anti-social behaviour.
It is also a story of abject failure for under-18s who, for whatever reason, have taken the wrong path in their lives. ASBOs have unduly focused on enforcement, criminalising young people with insufficient emphasis on helping young people subject to ASBOs to deal with the reasons for their anti-social behaviour and turn over a new leaf. That is why this Government want to see the back of ASBOs and give the police, local councils, social landlords and others more effective powers to enhance their ability to tackle anti-social behaviour and protect the public.
In her evidence to the Public Bill Committee, the chief constable of Thames Valley, Sarah Thornton, made the point forcefully:
“The fact is, the experience has been that the ASBOs have been quite bureaucratic, in terms of securing them, and maybe not as effective at tackling the problem as we hoped”.—[Official Report, Commons, Anti-Social Behaviour, Crime and Policing Bill Committee, 20/6/13; col. 71.]
The fact is that ASBOs are an all too visible reminder of a broken system which the new powers are designed to fix. As I said in Committee and indeed in our deliberations earlier on Report, the injunction under Part 1 and the criminal behaviour order provided for in Part 2 form major planks of our reforms to give front-line professionals the swift and more effective powers they need to protect victims and communities. The injunction will enable agencies to act more quickly, with its lower civil standard of proof, and will not overly concentrate on enforcing prohibitions or criminalise those who breach it—unlike the ASBO. However, the criminal behaviour order will be available for more serious cases, where there is a criminal conviction. In these cases, it is right for tougher sanctions to be available on breach and, as with the ASBO, breach will be a criminal offence. However, both powers can include positive requirements to help individuals to address the root cause of their anti-social behaviour and help them turn their lives around.
Baroness Smith of Basildon
My Lords, I struggled as I listened to the speech of the noble Lord, Lord Taylor of Holbeach, because he seemed to be replying to the speech that his officials thought I would make rather than the speech that I made. It is disappointing not to receive a response to any of the comments that I made. I asked for reassurance about funding but his only comment was about “downstream costs”. Perhaps most noble Lords know what he means but I am not sure that he does. It is very disappointing to receive a response to a speech that I made in Committee and not the one that I made today. However, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“Armed Forces Act 2006 (c. 52)In Schedule 3A to the Armed Forces Act 2006 (Court Martial sentencing powers where election for trial by that court instead of CO), paragraph 13(2) and (3) (service sexual offences prevention orders) is repealed.
Armed Forces Act 2011 (c. 18)(1) Section 17 of the Armed Forces Act 2011 (service sexual offences prevention orders) is repealed.
(2) In Schedule 4 to that Act (consequential amendments), paragraph 3(3) is repealed.”
“ In section 226 of that Act (extent), in subsection (2), after “Sections” there is inserted “151B,”.”
Lord Taylor of Holbeach
“( ) regulations under section 132(5)(b), or”
Lord Deben
“( ) section (Use of amplified noise equipment in vicinity of the Palace of Westminster);”
Lord Taylor of Holbeach
“( ) section (Abolition of defence of marital coercion);”
“( ) section (Jurisdiction of Investigatory Powers Tribunal over Surveillance Commissioners);”
Lord Taylor of Holbeach
“( ) Different days may be appointed under subsection (1) or (4) for different purposes or different areas.”
Lord Taylor of Holbeach