Anti-social Behaviour, Crime and Policing Bill

Debate between Lord McNally and Lord Hope of Craighead

Tuesday 12th November 2013 Lords Chamber

[Lord Hope of Craighead]

My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.

On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.

I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.

On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.

Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:

“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.

Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.

That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.

Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.

The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.

Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.

That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.

It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.

We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.

Court of Appeal (Recording and Broadcasting) Order 2013

Debate between Lord McNally and Lord Hope of Craighead

Tuesday 15th October 2013 Grand Committee

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, when I first looked round the Committee, I thought we were at a casting session for a future television programme.

The order before us today sets out the conditions under which the recording and broadcasting of footage in the Court of Appeal Civil and Criminal Divisions will be permitted. Before setting out further details about this order, I will briefly explain some of the background to this policy.

There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Few people have direct experience of court proceedings, and public understanding of how the justice system works is limited. In principle, the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. The justice system is viewed by many as opaque and complex. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings.

Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society and to allow cameras into our courts, but it is important to do so in a balanced way which will protect the individuals involved and preserve the dignity of the courts.

Currently the recording and broadcasting of footage in courts below the UK Supreme Court is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to create an order specifying the circumstances in which the prohibitions contained within the Criminal Justice Act and Contempt of Court Act may be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 is the first order to be made under that power, and sets the conditions under which the statutory prohibitions on recording and broadcasting will be disapplied to allow for recording and broadcasting of footage from the Court of Appeal. Any breach of the terms of the order may amount to contempt of court.

Recording and broadcasting of footage will be only of specified proceedings, as laid out in Article 5 of the order, where these proceedings are in open court and in front of a full court. Media parties may film only advocates’ submissions, exchanges between advocates and the court, and the court giving judgment. Filming of any other individuals—including appellants, members of the public, victims and witnesses—is not permitted. In cases where any party is not legally represented, only the court giving judgment may be recorded.

So long as any applicable reporting restrictions would not be breached by broadcasting, in many cases footage may be broadcast “almost live”, subject to a 70-second time delay, as agreed between media parties and Her Majesty’s Courts and Tribunals Service. We believe, however, that in some cases it is necessary to impose restrictions on broadcast in order to prevent prejudicing any potential future retrials, and to protect the interests of justice.

For this reason, any footage of proceedings where a retrial has been ordered may not be broadcast unless the court gives permission to do so. This means that in those cases where a retrial might be ordered, such as appeals against conviction, the court must give its permission before any part of those proceedings may be broadcast. Where a retrial is not ordered by the court, media parties may show footage immediately after the conclusion of proceedings. In certain limited circumstances, the court may give permission to broadcast even these cases from the outset. But until the conclusion of the case, the decision is solely for the judges in that appeal.

It is important for justice to be seen to be done but this cannot be at the expense of the proper administration of justice or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all the parties involved. Therefore, we have taken steps in order to ensure that any report or presentation using footage recorded in the Court of Appeal should be presented in a fair and accurate way. It will have to have regard to the overall content of the presentation, and to the context in which the broadcast footage is presented. Furthermore, footage may not be used in party political broadcasts or for the purposes of advertisement or promotion. It cannot be used for the purpose of light entertainment or satire.

The technical and operational details governing the recording and broadcasting of footage from the Court of Appeal will be set out in writing and agreed between the judiciary and the media parties. This will be annexed to the written authorisation of the relevant media parties by the Lord Chancellor.

When the broadcasting provisions were debated in this House during the passage of what became the Crime and Courts Act 2013, concerns were expressed that the introduction of cameras into the Court of Appeal, while broadly supported, might be the thin end of the wedge and lead to the undesirable broadcasting of trials and proceedings in the lower courts. I reiterate the assurance given at that time that any extension to the circumstances set out in this order will require a new order that will require the agreement of the Lord Chancellor and the Lord Chief Justice, and the approval of both Houses of Parliament under the affirmative procedure.

We are conscious of the concerns that were raised regarding victims and witnesses, and of the perceived potential detrimental effects that court broadcasting might have on their experiences in court. In particular, the comments made by the noble Baroness, Lady Kennedy, during the passage of the primary legislation through Parliament, as well as a report by the Joint Committee on Human Rights, led directly to the publication of a full impact assessment alongside this order, and to our continued engagement with interested parties.

It is rare that a victim or witness will appear in person at the Court of Appeal, as the majority of cases will be appealing a point of law rather than the facts of the case. However, in the event that they are present, a number of safeguards will be in place to minimise any potential impact that broadcasting may have. As I said, the order does not permit filming of any victim or witness. Nor does it permit the broadcasting of any footage of them. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming, or prohibit broadcast, in the interests of justice or to prevent prejudice to any person.

The Government are committed to increasing transparency and to providing the public with the information they need on the operation of public services. The justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work is critical to confidence in the system and to its effectiveness in ensuring that justice is done. This order will allow for greater visibility of the courts, without undermining the seriousness and diligence that are central to the quality of our justice system.

I hope that, in making the presentation, I made it clear that we know that we are going into new territory. Certainly the observations of this Committee will be greatly valued. In the mean time, I commend the order to the Committee.

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome the order. I rise to speak because I have some experience of the operation of a very similar system, which I introduced 20 years ago in Scotland. The position there is that there is no statutory restriction on the filming or audio recording anything that happens in any court. The matter is controlled entirely by the judiciary. When I became Lord President, it seemed to me—very much for the reasons given by the Minister in his opening remarks—that the public would benefit from seeing a little of what happened in the courts, and would thereby understand a bit more about how the process of justice was being administered. The opening remarks of the Minister were precisely to the point, and I very much agree with the reasons he gave for making this order.

On the other hand, I set as my criterion in deciding what to do about the other point that the Minister made, which was that the administration of justice and the respect that is due to the court itself were absolutely fundamental to any relaxation that might be made on any blanket restriction on the use of cameras or audio recording. The system which I set up was rather a modest one, but is almost exactly that which the Minister has put before this Committee. It depended entirely upon the consent of the court to the use of this equipment. Since we were allowing trials to be considered for audio and television purposes, it would require the consent of a lot of other people as well.

This is a very modest step, because it looks only to the Court of Appeal process. That is a good deal easier than the system at which I was looking. Nevertheless, I have one or two remarks. It is of course very different from the system from which I have just come in the UK Supreme Court, where there is a live feed of the hearings on Sky, and our judgments, when we give them, are reported instantly on YouTube. I understand from comments that have been made to me that both these systems are widely used by the universities, which like to keep track of what arguments have been presented to the court and what judgments have been given.

I do not think that, in not going that far, the Minister is making a mistake. When one looks to the Court of Appeal, as I was doing in Edinburgh, one has to be extremely cautious and move step by step. This step is carefully judged and very appropriate. However, I would like to suggest one or two points. First, the Minister might care to look for the future at the practice direction which I gave in 1992, which set out one or two other points to which people were expected to adhere. I do not have a copy with me today, but it is available in the usual way and provides some guidance to the way the system is operated in Scotland.

Secondly, to give noble Lords a little idea of how the system is actually used, one of the points which came over clearly to us was that the broadcasting corporations want quick feed for news broadcasts but do not have available space for a good deal of dispute and discussion in court unless, as Sky does, they provide it live on a feed which is simply available all the time. I cannot see the live system working here because, quite rightly, there is a check on what is being put out, so that the court must give its permission. The Minister said it could be almost live but cannot be actually live; I fully understand that. That being so, the use that could be made of argument would be rather limited.

However, I see real value in the broadcasting of, at least excerpts from, what judges are saying when dealing with an appeal against sentence. I confess that once or twice in the past two or three years I have wished that the noble and learned Lord, Lord Judge, who was sitting as Lord Chief Justice, had been seen on television. I knew that his remarks were extremely well judged, but I would have thought that they would have carried much more weight if people had seen him actually saying them. That will be the great value of this in the future, almost certainly the most valuable from the court’s perspective and also from the point of view of the broadcasters.

Two things may be missing here. First, in Scotland, we find that the television companies now mostly use the system for ceremonies that take place in court. When a new judge is introduced, which happens fairly frequently these days, there is a fairly colourful ceremony which takes place in court. When the First Minister for Scotland is sworn in, that takes place in court as well. These things do not happen, of course, in the Court of Appeal. On the other hand, things do happen in the Lord Chief Justice’s court which might be of interest to the public, and they are not on the list of things which can be broadcast. It may be that experience will allow for a little bit of relaxation to allow that kind of thing to take place; for instance, when a new Lord Chief Justice is sworn in.

The other thing is documentaries. I think—but I would be grateful if the Minister could confirm—that the recordings referred to here would be available for broadcasters for use in documentaries. That was what happened in our experience in Scotland. Six programmes were made to show trials as they happened and, in one or two cases, the appeals that followed after trial. There has been another one very recently in Scotland, the case of Nat Fraser, where the same technique is being used. It has been broadcast, using recorded material from the proceedings in court. I can see some interest in the way this is done, although of course it will lack the draw for the broadcaster of having the evidence, but at least some of the argument could be helpful. It would be interesting to know whether documentaries would be covered.

Those are the three points for further reference: first, checking how it is done in Scotland for some guidance as to how the system actually works in practice; secondly, ceremonies; and thirdly, documentaries. Otherwise, I very much welcome this measure and I am sure that in due course we will find it beneficial.

[Lord McNally]

I really appreciate what the noble and learned Lord has said. Perhaps it is a factor of age but it is fair to say that I was the least enthusiastic of Ministers about this. I have used in ministerial discussions the term “slippery slope”. The noble and learned Lord’s endorsement is very clearly on the record. I am interested to know whether there has been any downside in Scotland. Has any abuse by the television authorities been later used to call into question a court judgment or anything like that?

[Lord Hope of Craighead]

No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.

I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.