Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Kennedy of Shaws and Baroness O'Loan

Wednesday 22nd January 2014 Lords Chamber

[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.