Anti-social Behaviour, Crime and Policing Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 22nd January 2014 Lords Chamber

The test proposed in the amendment will not be easy for a claimant to satisfy. Many deserving cases will fail to secure compensation. I have also to accept that some cases will be on the other side of the line, in which compensation will be payable, even though there may remain strong suspicions that the claimant was in fact guilty, even though he has not been convicted. However, we need a clear and workable definition that is consistent with legal principle. I repeat: this is a difficult problem, even though there are only between two and four successful applications for compensation a year. It is therefore not the case that a great deal of public money is at stake. For the reasons that I have sought to explain, the better solution to a difficult problem is as stated in the amendment. I beg to move.

[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.

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[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.

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[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.