Anti-social Behaviour, Crime and Policing Bill

Baroness O'Loan Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I congratulate the noble Lord, Lord Paddick, on his eloquent and humorous maiden speech. We look forward to hearing much more from him.

I welcome many of the provisions of this legislation, in particular those in relation to forced marriage, dangerous dogs and the additional powers given to the IPCC. In particular, and most importantly, I welcome Clause 123, which provides for access to information—a critical tool for an investigator. I also join with many of the comments that have been made in relation to anti-social behaviour and the deficiencies of the Bill as currently drafted. I also draw attention to the 20 or so recommendations and observations of the Joint Committee on Human Rights, to which I belong, in relation to that section of the Bill alone.

I will speak on the issue of compensation for miscarriages of justice. Clause 151 provides that compensation will be payable for a miscarriage of justice,

“if and only if the … newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.

The UK has a long and proud history of the presumption of innocence in criminal matters unless guilt is proved beyond reasonable doubt. The European Convention on Human Rights, which was drafted largely by United Kingdom representatives, maintains this presumption in Article 6(2) of the Convention. It is one thing to be able to prove that there is reasonable doubt as to the safety of a conviction, and even that will normally take years, during which the person wrongly convicted will serve a prison sentence. The CCRC process and the process of the Court of Appeal do not involve a retrial. The person seeking to overturn a conviction is often in a very lonely place—it is not an easy process. The Minister has told us that Clause 151 is intended by the Government to bring much needed clarity—as the noble Lord, Lord Faulks, said, it does. However it is, in fact, a total change in the law. Never previously has the victim of a miscarriage of justice had to prove innocence beyond a reasonable doubt.

As I have said, the business of disproving guilt is not easy. A court may, as the Minister in the other place stated, determine that a person’s conviction is overturned; for example, because DNA evidence comes to light showing that they could not have committed the offence. That may seem a very simple example, but it is not. In many cases, both here and in Northern Ireland, there will be people convicted long before DNA testing became available, where the evidential material, which may well have contained exculpatory DNA evidence, has been destroyed for a variety of reasons. Most commonly, evidence such as clothing was destroyed because blood contamination was regarded as constituting a health risk. That should not happen now, but the cases in which there is a referral to the Court of Appeal by the CCRC are not recent cases, and they are only the most serious ones. People may also be convicted on what turns out to be false expert evidence, as in the cases of parents whose children died suddenly and who were wrongly convicted. If it transpires that the evidence is not reliable, the conviction will be overturned. That will not prove the innocence of the mother or father. There are many other reasons why a person may be incapable of proving their innocence to the standard required by this test. Obviously I cannot give examples of all of them in the time allowed.

If we legislate in the way suggested by the Government, we will create two types of “not guilty”. There will be those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted. Since they cannot prove their innocence, while they may assert that they did not commit the offence they will not be able to claim compensation, and it is inevitable that some people will conclude that they are not innocent because they are not innocent beyond all reasonable doubt.

In a number of cases people were convicted on evidence fabricated by police officers. I think, for example, of a schoolboy in his late teens who was convicted of murder on the basis of a confession and other evidence secured as a result of wrongful behaviour by police officers. The boy in question did not commit the murder, but could not prove that and served over a decade in prison before being released. His conviction was overturned, but that evidence, which should never have been presented to the court, does not prove his innocence. It is something completely different to ask the victim of a miscarriage of justice to prove his innocence.

Such victims would effectively have to reinvestigate their own case in order to prove their innocence. In many cases they would not get the right of access to documents, to question witnesses, to get expert evidence checked, or to get access to retired police investigators, who would not assist them. Have the Government considered how such a person is supposed to satisfy that test, which is not the test required by the Court of Appeal?

It has been pointed out that had this clause been law at the time of the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward, they would all have been highly unlikely to meet the test. In criminal law people do not have to prove their innocence; the prosecution has to prove their guilt beyond reasonable doubt. When the state has held that a person was wrongly convicted, years after the event, it is very likely that it will just not be possible to marshal the necessary evidence to prove innocence.

Compensation is given for the wrongful conviction and for the time served in prison. If a court declares a conviction to be unsafe, the person who is released will have to try and rebuild his or her life. They will usually have spent long years in prison. They will have lost their opportunities to be educated, marry, have children, build a life and contribute to society. Above all, they may have lost contact with their family, or their relationships may have broken down to the extent that they are not repairable—and all that because they were wrongly convicted. Now the Government propose to remove the right to compensation from anyone who cannot prove their innocence beyond reasonable doubt. This matter was discussed briefly in the other place, and amendments were tabled that sought to address this. There was some debate, but it was decided in the end to leave the matter to this House. They said,

“leave it to the other place to find the right answer”.—[Official Report, Commons, 15/10/13; col. 610.]

The Minister told us that there are two to four cases a year in which compensation is paid. Can he tell the House whether that number covers England, Wales and Northern Ireland, or whether it is England and Wales only? If it does not cover Northern Ireland, can he give us the Northern Ireland figures? Can he also tell the House how many unsuccessful legal challenges there are each year? I suppose that I am really asking the Government, “Is this really mischief which requires to be remedied through legislative change, or is it something that will damage forever the reputation of law in the United Kingdom?”.