Anti-social Behaviour, Crime and Policing Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 11th March 2014 Lords Chamber

In the other place the Government did not address— far less answer—the concerns about the practical consequences and the issues of principle which I have summarised. I cannot—again, with respect—agree with the attempts by the noble Lord, Lord Faulks, to respond to those points today. This House should invite the other place to think again on such an important issue. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.

For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded however, as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.

I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.

Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds. Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.

I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts of which only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently true as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.

My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this Bill would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting his case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.

If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.

[Lord Hope of Craighead (CB)]

My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.

I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.

In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.

Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.

[Lord Brennan (Lab)]

My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.

We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.

Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.

What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.

Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.

It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.

The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals. The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.

In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?

There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.

How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.

[Lord Brown of Eaton-under-Heywood]

My Lords, I just ask my noble friend to agree that, under any test, neither of these cases would qualify for compensation because compensation is payable not on an initial acquittal, a first appeal or an appeal brought in time, but only ever on a late appeal. They would therefore not have qualified anyway: it is only for a restricted group of cases in which they are not included.

[Lord Brennan]

Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.