Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 18th October 2022 Commons Chamber

[Rachel Maclean]

My right hon. Friend has a hugely impressive track record of campaigning on all these issues, to enable women and girls to live safely both online and in the real world. She points to some of our previous work. Of course, technology is always changing, and the Government always keep this under review. It is right that we take time to consider the Law Commission’s recommendations, but I would be happy to meet her to discuss it in more detail.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Will the ministerial team go further in protecting women online? Is the Minister aware of the number of women journalists at the BBC who are trolled mercilessly into mental health issues? One dreadful troll was described as being in the Olympic class. These women have never been supported by the BBC, and they have never been given the support they should have been given. Will she join our campaign to secure justice through an independent inquiry into the negligence of the BBC towards its employees?

[Rachel Maclean]

I thank the hon. Gentleman for bringing that matter to the attention of the House. Of course, the Government have a range of responses to keep all women—not just BBC journalists—living their lives. It is absolutely right that we put in place the further protections that are contained in the Online Safety Bill. If he has further proposals, I ask him to bring them to me and I will be happy to look at them.

--- Later in debate ---

[Mike Freer]

I can reassure my hon. Friend that the Government are still reviewing those recommendations and looking forward to bringing forward methods, with the Chief Coroner, on how we can address that backlog.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Will the new team look at the way we handle miscarriages of justice in this country? Will they look at the report from the all-party group on miscarriages of justice, which is chaired by me and the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and help us to reform the way in which we treat miscarriages of justice?

[Brandon Lewis]

I always make it a priority to ensure that I am working with Committees. I will very happily have a look at that report. I am happy to talk to the hon. Member and his co-chairman in due course as well.

Criminal Cases Review Commission

Barry Sheerman Excerpts

Tuesday 13th April 2021 Westminster Hall

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op) [V]]

I beg to move,

That this House has considered strengthening the Criminal Cases Review Commission.

It gives me great pleasure to have the opportunity to speak this afternoon about the Westminster commission on miscarriages of justice. As someone who has been in the House for a very long time, I have to admit to you, Sir Charles, and to the Minister that this is my first time doing a Westminster Hall debate in this way. I was delighted yesterday to manage to come physically into the House of Commons after a year to pay my tribute to the Duke of Edinburgh. Please bear with me if I make any mistakes and do correct me if I put a foot wrong.

As you know, Sir Charles, I have been in the House for a very long time; and long before you were in the House, I was deputy shadow Home Secretary to the shadow Home Secretary, Roy Hattersley. All those years ago, at the time of the Guildford Four, the Maguire Seven and all those very controversial cases, I was quite intimately involved—well, rather on the periphery, but certainly involved at that rather interesting time in British politics—with what was happening in terms of alleged miscarriages of justice, so this has been a long-term interest of mine, an interest over a long period of time.

A very great friend of mine, Glyn Maddocks, who very early on was a research assistant of mine in the House of Commons, has over the years, as a lawyer—a solicitor—made miscarriages of justice one of his central areas of interest; and over those years, I have helped in individual cases when they have been brought to me as worthy of having a look at and perhaps giving my support to. We have had some very great successes, but I want to stress that many people, including many of my constituents, would not know very much about how we handle miscarriages of justice in our country. It shocks many people when they realise. We have a system that is not bad—not bad at all. When miscarriages are discovered and resolved, the wrong is put right to some extent. However, not many people realise that someone can serve 15 or 18 years in prison and it can be found that they have been wrongly imprisoned for all that time, but, when they leave prison, they get not one penny of compensation. Indeed, we can compare that to the situation of a convicted criminal who has been in prison, perhaps for murder, for a very long sentence—say, 12 or 15 years—and who comes out. They get rehabilitation and support to get back into the community, but if someone is found to have been wrongly convicted, they get nothing of that; there is no compensation, so this is something that has been a great interest of mine.

Back in 1997 we introduced the Criminal Cases Review Commission—the CCRC—and everyone thought at the time of its introduction that we had absolutely sorted the problem. To give you the background, Sir Charles, you will know as well as anyone that, even in the best criminal justice system, mistakes are made. If we look at countries similar to ours with good justice systems, throughout the world a good justice system also has the capacity to look at miscarriages that might occur. We all know—we are human beings—mistakes and errors are made in the criminal justice system for complex reasons.

Over the years of the CCRC working, it has done a good job, but we increasingly see evidence of a lack of cases being referred for review and that has been a worry. In my short speech today, I want to give some idea of the problem. I am a campaigner and I know that one of the greatest assets in a campaign is to have a good all-party parliamentary group. Two years ago, the hon. Member for Bromley and Chislehurst (Sir Robert Neill) and I started an all-party group on miscarriages of justice with very good membership in the Lords and the Commons. After some good seminar discussions and identifying the problems, we resolved that we would try to put together a commission to look at the issue, not only to give it some reputation, but to take written and oral evidence and to see if we could make good recommendations, not to criticise or be negative about the Criminal Cases Review Commission, but to assist it and make it even more effective. That is the background to why we founded the commission.

Very often, all-party groups can be extremely good, with very good seminars, but there is always one member who steps outside and we overhear them say, “That was a really good discussion, but it was just a talking shop”. We did not want this APPG to be a talking shop, so we founded the Westminster commission on miscarriages of justice and then we struck lucky, because Lord Garnier and Baroness Stern in the House of Lords—people with an enormous reputation in the criminal justice system—agreed to co-chair the commission and a commission of inquiry.

What I am putting forward in this debate through this strange online link is the fact that we very carefully and positively, on an all-party basis, tried to look at a problem that emerged and to come up with some good suggestions for improvement and reform—all in a positive spirit, but with an underlying passion. Miscarriages of justice do dreadful things to people who are wrongly imprisoned for long terms. They ruin their lives and their families’ and friends’ lives, and their communities are deeply damaged when a real miscarriage takes place and is not put right. In that spirit, we set course not only with the all-party group, but with the commission.

The commission has now published a report, which Lord Garnier and Baroness Stern gave the title, “In the Interests of Justice—An inquiry into the Criminal Cases Review Commission”. I want to briefly mention what we think the problems are. One is known as “the real possibility test”. We believe that the predictive nature of the real possibility test encourages the CCRC to be too deferential to the Court of Appeal. It seems to act as a brake on the CCRC’s freedom of decision and we believe that needs reform. We urge the Government to take that recommendation seriously.

My second point is something that not many people really know of. Those of us who care about our justice system have been very positive, and we know that justice is not a cheap commodity, but the Ministry of Justice has experienced the biggest cuts of any Department in the past decade. There is no doubt about that, and there have been serious effects in relation to miscarriages of justice. When that overall lack of resource for justice is combined with covid and its dreadful impact in delays in the courts of justice, we know that the justice system has been going through a tough time, and there has been an impact with miscarriages of justice in particular. At a time when the CCRC has been more needed than ever its budget has been slashed too, and we believe it urgently needs more resources to fulfil its role. The figures are not extraordinary; they are very modest with respect to what is needed to put things right.

The third issue is investigative powers. The inquiry revealed one instance where the CCRC had waited 1,000 days for a public body to comply with a disclosure request. What is the point of the CCRC’s having special powers to request public bodies to disclose evidence if it cannot enforce its requests? That seems extraordinary. The case taking 1,000 days was extreme, but in many cases there are serious worries about lack of co-operation. It is good for everyone in the justice system if there is transparency. The principle of open justice is at the heart of the system; but for that we need accountability and transparency, and the CCRC needs to do better on both counts, to maintain public confidence in its work.

We have done our job very well. The all-party group visited the CCRC. Not many people know this, but it is based in Birmingham. I am very much in favour of putting civil service jobs and Government jobs out in the provinces, as I am sure you are, Sir Charles, but the CCRC in Birmingham is somewhat out on a limb and a visit was important, so that we could see how those good, dedicated teams work. However, the all-party group was rather shocked by the fact that the team is small, commissioners’ remuneration has declined quite steadily—they are paid on a per diem basis as consultants rather than as full-time employees—and they find it hard to recruit some full-time staff because of the general level of pay and conditions. We saw a really good bunch of men and women, working hard—everything that I am saying today is what we say in the report—but they were restricted by the resources at their command. Also, we believe that the move away from more full-time people towards having part-time people working on a per diem basis has not been very good for the organisation’s overall effectiveness.

The last point that I want to make—and strongly—is that we believe the cut in resources has also affected communication with applicants. It is important for those appealing about a miscarriage who are in prison, and their families, to be kept in the loop about what is happening, and the stage that their application for a review has reached. We took evidence from people who had been wrongfully imprisoned and then released and from their families and friends. While the CCRC has made important efforts to make itself more accessible to potential applicants, it must communicate better during the case reviews. That is most important. It is a stressful time for many people and is made worse by silence or infrequent, hard-to-understand updates from the CCRC.

Sir Charles, this is a unique report, in the sense that it is very high quality. I do not think anyone could fail to be impressed by Lord Garnier and Baroness Stern’s commitment and the hard work they put in, or the quality of the report that we have subsequently published. I am sure the Minister and the Government have seen the report, but I ask today that they look at it in a positive spirit. Every inch of the way we have tried to say, “This is a very good organisation. It could be much more effective and it would be good for our justice system, and for its reputation as a high-quality justice system, if some modifications, along the lines of our recommendations, were made.”

We did not find any of the staff involved in the report to lack the commitment or desire to do a better job, and I know the report has been warmly endorsed by those delivering and working for the Criminal Cases Review Commission. We have worked hard, on an all-party basis. We believe we have come up with something that is useful to the Government. Would it not be nice if we could see that hard work, across the Commons and the Lords, produce something effective to improve the situation in our justice system?

Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 2nd February 2021 Commons Chamber

[Rachael Maskell (York Central) (Lab/Co-op)]

What progress he has made on reducing the backlog of cases in HM Courts and Tribunals Service.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

What steps he is taking to tackle the backlog of court cases as a result of the covid-19 outbreak.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

The covid pandemic has had an enormous effect on public services, including the court system, but we have risen to that challenge, investing a total this year, as I said earlier, of an extra quarter of a billion pounds in court recovery. That has included installing 450 plexiglass screens in courtrooms to facilitate covid-safe hearings and installing the cloud video platform in 150 magistrates courts and 70 Crown courts to enable remote hearings, which last week delivered a record in excess of 20,000 remote hearings across all jurisdictions. We are not resting. There is more work to do and this Government will take whatever action is required to ensure justice is delivered.

--- Later in debate ---

[Chris Philp]

I recognise the considerations that the hon. Lady raises. I know that when judges make listing decisions, they carefully take into account the sort of considerations that she rightly outlined. Of course, many of the delays in bringing these cases predate coming to trial; they might be related to issues to do with disclosure or the time it takes to investigate and then assemble the case. We hope that many of those issues can be addressed via the rape review, in addition to the work that is being done on disclosure rules, and the extra money going into the CPS will help. As I said, we recognise that there is a problem in this area, which the rape review and the other measures aim to address, because delays do not serve the interests of justice; they cause distress for victims, as the hon. Lady rightly says. That is one of the reasons we have invested so much extra money in supporting victims, but I agree that delivering speedy justice in this area is critical.

[Mr Sheerman [V]]

From all the evidence in Yorkshire and the north-east from judges, retired judges and senior barristers, I get the feeling that there are serious problems. Is it not the case that the Government are using covid as a fig leaf for the fact that our justice system was in terminal crisis before covid, and we must have a renewal of our justice system and investment in it? When are we going to see the royal commission on criminal justice up and working?

[Chris Philp]

I am afraid that I do not recognise the hon. Gentleman’s characterisation of the justice system prior to coronavirus. Waiting times in the magistrates court prior to coronavirus were about eight weeks, which is an entirely respectable figure. The outstanding case load in the Crown court prior to coronavirus—39,000—was quite low by historical standards and significantly lower than the 47,000 it was when Labour left office in 2010. Moreover, the HMCTS budget in 2020 was higher by some £200 million that it was in 2010. There is, of course, a great deal more that we need to do. A lot of money is being invested this year, and more money will be invested in the future. My right hon. and learned Friend the Lord Chancellor is working at pace on the royal commission on criminal justice, and we are expecting announcements in due course.

Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 8th October 2019 Commons Chamber

[Robert Buckland]

I am more than happy to confirm all those points, made so ably by the Chair of the Justice Committee.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Will the Secretary of State today put it on record not only that he believes in the independence of a robust judiciary, but that his Government will obey the law, and not crash us out of the European Union against the law?

[Robert Buckland]

I can confirm that this Government, like their predecessors and, I hope, successors, will continue to respect and obey the law, and respect the rule of law.

Criminal Cases Review Commission

Barry Sheerman Excerpts

Wednesday 17th July 2019 Westminster Hall

[Sandy Martin]

I thank the hon. Gentleman for that intervention; he is absolutely right and I will expand on that point later in my speech.

I am raising this issue today because the case of Oliver Campbell, my constituent, is a classic example of a devastating miscarriage of justice, for the resolution of which the CCRC appears to be more of a hindrance than a help.

Oliver was convicted of murder in 1991 and spent 11 years in prison. He is here in Westminster Hall today with a friend, so that he can hear this debate. He knows that I am not being rude when I say that he has a low IQ; he also knows that that is as a result of a brain injury he sustained as a baby. This reduced mental capacity should have been evident to everyone involved in this case from the moment of Oliver’s arrest in 1990, some two months after the murder of an Asian shopkeeper in Hackney.

I have known Oliver for about 10 years. I think that anyone meeting him would come to the same conclusion reached by myself and others, including the BBC’s “Rough Justice” team, Michael Birnbaum QC, Oliver’s long-standing solicitor Glyn Maddocks, and the distinguished broadcaster, Kirsty Wark, namely that Oliver simply was not capable of carrying out such a crime.

Oliver was arrested because witnesses identified one of the two men who carried out the robbery during which the shopkeeper was killed as wearing a distinctive baseball cap. The other man, Eric Samuels, was relatively short and the witnesses also described the two men as being of similar height. Oliver is a large man who is 6 feet 3 inches tall.

Oliver was questioned for several hours in a police station without the presence of an appropriate adult, which he should have had due to his impaired mental capacity, or a lawyer. Eventually, a lawyer was found, but it was only after that lawyer had left the police station, having left clear instructions to be called back if there was to be any further questioning, that the police—in direct contravention of those instructions—pressed Oliver, in the presence of his ex-foster carer but no legal representative, to confess. Within half an hour of persistent suggestion from the police, Oliver had confessed to a murder that I do not believe a reading of the evidence could possibly suggest he had committed. Many of Oliver’s answers to the police were bizarre and made no sense whatever, so it is hard to understand how they could ever have been relied upon.

Oliver’s lawyer was then called back, and Oliver immediately withdrew his so- called confession. However, in December 1991 he was convicted, almost entirely on the basis of this very dubious confession, and he served 11 years in prison. There was no forensic evidence linking him to the baseball cap nor to the scene of the crime. None of the fingerprints or hairs that had been recovered from the scene or from the cap match those of Oliver. His co-accused, Eric Samuels, who admitted taking part in the robbery, said in interview that Oliver had nothing to do with the murder and was not at the scene. However, this information was never put before the jury as evidence. Samuels’ statement was never signed and Samuels refused to take the witness stand.

Samuels was subsequently tracked down and interviewed by the BBC’s “Rough Justice” programme for its 2002 episode, “If the Cap Fits”. He was filmed during the show’s investigation and again described how the cap was taken from Oliver’s head by the man who was actually his accomplice—the man who was actually the murderer—and how it had been dropped near the shop. Samuels again refused to sign a statement, this time on the advice of his key worker.

A ballistics expert was also brought in by the BBC, who established that the murderer must have been right-handed; other experts have shown that Oliver favours his left hand for most tasks. Oliver’s bizarre confession apparently includes details of how he made a holster for the gun out of string and how he had practised shooting in a forest or a field, but he could not tell the police the location or even whether it was a forest or a field. He was pressed to identify how many bullets he had had and how many were fired, but he clearly had no idea what the correct answer to either of those questions was.

After the “Rough Justice” programme was broadcast, detailed and extensive submissions were made to the CCRC by Oliver’s legal team, including by his solicitor, Glyn Maddocks, and his eminent QC, Michael Birnbaum, in the clear hope—indeed, expectation—that the Commission would refer Oliver’s case back to the Court of Appeal.

After two long years, the CCRC concluded that there was nothing new to form the basis of a fresh appeal and that therefore there could be no appeal. That was despite a recent change in the law that would have enabled the Court of Appeal to rely on the statements that Eric Samuels had made, in which he completely exonerated Oliver.

The CCRC also ignored the reports of two very eminent psychologists, who explained that Oliver’s acquiescence to police questioning was due to his limited mental capacity, and his eagerness to please and be accepted. As Kirsty Wark reported at the end of the “Rough Justice” programme, this evidence of Oliver’s mental state, which had never been brought before the original jury, constituted

“fresh new evidence which points to a terrible miscarriage of justice”.

I am bringing this case to the attention of the House for two reasons. First, of course, it is because I believe Oliver to be innocent of the crime of murder. Life is not easy for Oliver; life never would have been easy for him, even without a murder conviction hanging over him. Oliver works five mornings a week at a community café as a cleaner; he spends the rest of his time trying to clear his name. Secondly, however, and crucially, the other reason for us to have this debate here today is because the CCRC was established by this House to make it easier to rectify miscarriages of justice, and I do not believe that it has achieved that aim.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

My hon. Friend and I are founder members of the new all-party parliamentary group on miscarriages of justice. As he knows, we now have the Westminster commission on miscarriages of justice, led by Lord Garnier and Baroness Stern. Does he believe that we need a fundamental change to the CCRC, both in terms of its structure and its resources?

[Sandy Martin]

I thank my hon. Friend for his intervention and he is right. I was very pleased to have gone to the first hearing of the Westminster commission on the role of the CCRC just the other day. I think it is making good progress and I hope to see a radical change in the way that we deal with appeals on the grounds of miscarriage of justice.

In my view, the grounds for an appeal in this case are compelling. I am not a lawyer but I have an inquiring mind, and the first three grounds submitted by Oliver’s lawyers seem to me to constitute essential issues that cry out to be reconsidered properly by a court.

Ground A is that the admissions made by Oliver in his so-called confession were inconsistent, inaccurate when compared with the rest of the evidence and, on a number of points, simply absurd. Ground B is the report of Professor Thomas-Peter, a well-respected and highly experienced psychologist. That report states that Oliver’s

“lack of mental capacity for understanding anything other than the simplest of questions indicates to me that he would be vulnerable to self-incrimination.”

He added that Oliver had difficulty understanding double negatives and that, from his reading of the available documents,

“it seems that part of Oliver’s defence was based upon his succumbing to intimidation rather than his inability to understand complex questions.”

Ground C is police misconduct. I would very much like to believe that the treatment Oliver received at the hands of the Metropolitan police would not happen today. Oliver was not treated appropriately and consistently in relation to his obvious needs and inabilities: he was questioned without solicitors, and was misquoted back to himself by the officers in order to confuse him. References were made during the interview to fingerprints on a can of lager held by the murderer being Oliver’s, which was not the case and which the police knew not to be the case. If the prints were Oliver’s, they would certainly have been cited in the prosecution’s case; if they were not Oliver’s, the fact that they belonged to someone else ought to have been enough to acquit him. However, that evidence was never brought to the attention of the court. There is still no forensic evidence to link my constituent to this murder.

[Mr Sheerman]

Does my hon. Friend agree that in some criminal justice systems, access to all the evidence that was presented by either side at the trial makes it much easier to look at the case later and mount an appeal, and does he believe that is something we should have in our country?

[Sandy Martin]

I absolutely agree with my hon. Friend, and thank him for his intervention. As far as I can tell, any criminal justice system that does not allow all the existing evidence to be available to both sides of the argument prevents the correct decision from being made in court. I believe the commission needs to look again at Oliver’s case, and that if it carefully re-reads the submission from the QC, it will conclude that there is indeed good cause to send this case to appeal.

The recently established APPG on miscarriages of justice has gained a great deal of support in this House. Oliver’s pro bono solicitor, Glyn Maddocks from Gabb and Co, who has represented Oliver for over 20 years and is a recognised expert in miscarriage of justice cases, is a special advisor to the APPG. He has been working closely with the newly established Westminster commission on miscarriages of justice, which is co-chaired by former Solicitor General Lord Garnier QC and Baroness Stern. Will the Minister confirm whether the Government will give their full support to the Westminster commission as it undertakes its important work?

The purpose of the Westminster commission is to look at the difficulty in overturning wrongful convictions in England and Wales. Such a review, particularly of the CCRC and its relationship with the Court of Appeal, is long overdue. I hope to have an opportunity to submit the failings of the CCRC’s review of Oliver Campbell’s case as evidence to the Westminster commission. We need our justice system to be fit for purpose, to identify and punish the guilty and exonerate the innocent, and when there is clear evidence that that has not happened, we need to know why. However, we also have a fellow human being to consider—a man who is still living under licence, with barely enough income to survive and subject to recall to prison at any time. I strongly believe that Oliver has already had to wait too long to have his name cleared. I urge the Minster to write to the CCRC and ask it to review Oliver’s case once more as soon as practicably possible, and reconsider its decision not to refer his case back to the Court of Appeal.

No one doubts that the job of the CCRC is difficult; it is constantly being asked to do more with fewer resources. I suspect that when it was set up in 1997, it was never expected that it would receive 1,500 applications each year. In its 22 years of existence, it has reviewed nearly 24,000 of the 25,000 applications it has received, many of which have been completely ineligible. The commission has referred 658 cases to the Court of Appeal, of which all but 10 have been heard in the courts. Some 437 convictions have been quashed, and 198 appeals have been dismissed. It is beyond me, and beyond anyone else who knows anything about this case, why Oliver’s case was not one of those referred. However, does the Minister agree that the rate of convictions quashed suggests that a large number of the cases that have not been sent to the Court of Appeal might also have led to convictions being overturned?

There is some concern about the subordinate relationship the CCRC has with the Court of Appeal, and about the difficulty it faces when applying the real possibility test, which it currently uses to decide which cases to refer. I have personally seen from Oliver’s case that the CCRC has acted somewhat more as an arbitrary gatekeeper than as a champion for righting the obvious miscarriage of justice he has suffered.

Oliver will be 50 next year, and has been fighting to clear his name for nearly 30 years. Those within the criminal justice system who have had contact with Oliver professionally, including during his time in prison, have had very serious doubts about his conviction. The governor at Wandsworth described him as

“of very low intelligence and childlike in some ways. Knowing him as we do it is difficult to see how he has ended up in this situation”.

His probation officer said he had serious concerns about Oliver’s conviction for murder. Even the trial judge’s report to the Home Secretary at the end of Oliver’s trial reflected his view regarding the gross artificiality of the result, and the unsatisfactory nature of the trial process that led to it.

It is right that I pay special tribute to Oliver’s legal team, his solicitor Glyn Maddocks and his QC Michael Birnbaum, both of whom have worked tirelessly and resolutely for over 20 years on an entirely pro bono basis to achieve justice for Oliver. Such dedication is rare, but at a time when legal aid is almost non-existent and miscarriages of justice are increasing—surely linked to cost pressures in the criminal justice system—it is an absolutely precious commodity. I hope that many other younger lawyers will be inspired to work on cases such as Oliver Campbell’s.

Several people have said that Oliver Campbell’s case is the clearest example of a miscarriage of justice that they have seen. I am surprised and dismayed that the CCRC, established by this House with the support of all parties following the recommendation of the royal commission on criminal justice under the Major Government, has failed to enable the correction of what is so clearly a wrongful conviction. I call on the Minister to institute a review of the CCRC’s decision-making powers.

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

It is a pleasure to serve under your chairmanship, Sir George. I congratulate the hon. Member for Ipswich (Sandy Martin) on securing this debate on the decision-making powers of the Criminal Cases Review Commission—which, like him, I will refer to in my remarks as the CCRC, for brevity’s sake.

I also thank the hon. Gentleman for setting out Oliver Campbell’s situation. I know that the hon. Gentleman is a forceful champion for his constituent, and indeed for his constituency, and I pay tribute to him for that, just as I do to the hon. Member for Huddersfield (Mr Sheerman) for his commitment and dedication to the issue. I must be a little bit careful when paying tribute—a reshuffle looms, so I am not sure whether paying such fulsome tribute to Opposition Members will help or hinder my career prospects. However, the work they have done is truly impressive and important. Although I am sure the hon. Member for Ipswich appreciates that it would not be appropriate for me to discuss an individual case on the Floor of the House, I welcome the opportunity to discuss the broader issue. I am of course happy to discuss his constituent’s case with him outside the Chamber, should the hon. Gentleman feel that would be helpful.

As the hon. Member for Ipswich has set out, the independent CCRC plays a vital and valuable role in maintaining confidence in the criminal justice system. In addition to my tributes to Members present in this Chamber, I pay tribute to the commitment of the CCRC commissioners and staff, and to their work in investigating potential miscarriages of justice. I am sure all Members, both in this Chamber and beyond, share my view that miscarriages of justice are a blight on our criminal justice system; have a devastating impact on all those involved; and can cause people to question that justice system, which we must seek to avoid at all costs.

Since the establishment of the CCRC in 1997, my understanding is that 441 referrals from the commission have succeeded in the courts—I raise the hon. Gentleman by four. Those referrals have resulted in overturned convictions or amended sentences.

[Mr Sheerman]

The Minister has always been very supportive and listened carefully to everything we have been campaigning on, which I appreciate. Some of us went to visit the commission in Birmingham, and we got the impression that it was under-resourced; that it cannot get investigators because it is right out on a limb in Birmingham and should be closer to the centre of legal affairs in our country, here in London; and that very often the commissioners are part time and work from home. Does the Minister think there is a bit of a problem there?

[Edward Argar]

I am grateful to the hon. Gentleman. I suspect that some of his colleagues who represent Birmingham seats might slightly take issue with his suggestion that the city is out on a limb. We believe that the approach adopted by commissioners allows for flexibility and the most effective management of case loads, and I will move on to the tailored review shortly. From my discussions with the new chair of the commission, my understanding is that she felt that the resourcing was adequate and appropriate, but that changes are needed to reflect the findings of the tailored review. I will touch on that in a moment, subject to time.

The CCRC is, as the hon. Member for Ipswich alluded to, the world’s first statutory, publicly funded body charged with the task of reviewing alleged miscarriages of justice. The law provides that the commission can refer cases to an appeal court only when it considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the referral to be made. The hon. Gentleman and his hon. Friend, the hon. Member for Huddersfield, have set out concerns about the real possibility test and whether it affects the rate at which the commission refers cases to the appeal courts.

The hon. Member for Ipswich asked whether the rate of convictions quashed suggests that a large number of the cases that have not been sent to the Court of Appeal might also have led to the convictions being overturned. Those concerns have been aired before and were considered by the Justice Committee in its report on the CCRC published in March 2015. The Committee considered whether a declining rate of referrals was due to the real possibility test itself, the CCRC’s application of it or the Court of Appeal’s approach to appeals. It found no conclusive evidence of the CCRC failing to apply the test correctly.

We do not feel that it would be appropriate to alter the test simply to demonstrate the independence of the CCRC. Doing so would by definition risk allowing referrals where there was less than a real possibility of a conviction or sentence being overturned. The Committee accepted that the application of the test is a difficult task and is by no means a precise science, but it considered that the CCRC should be willing to err on the side of making a referral where potential miscarriages of justice are concerned. I am assured that is the approach the CCRC adopts, and there must be a realistic chance of success.

Both hon. Gentlemen referred to the work of the recently established commission. I will make two comments on that. First, I fairly regularly meet the hon. Member for Huddersfield, and if the hon. Member for Ipswich would like to join those discussions of the broader issues, as well as meeting to discuss Oliver’s case, he is welcome. I look forward to following the commission’s work. Without making firm commitments, I hope that the hon. Member for Huddersfield will recognise that I have always been willing to engage constructively since I have been in this role, and I look forward to doing so in future.

[Mr Sheerman]

Just to put the record straight, the people we met are really good people. I did not want to denigrate them; they are very good people, but they are under-resourced. I got the feeling, talking to them and talking to people in this area, that senior people in the judiciary do not like the system and are not positive towards it. Is that the real key; that some senior judges do not like the process at all?

[Edward Argar]

The hon. Gentleman is an experienced Member of the House and he is gently tempting me to speculate on areas where I will not tread. I believe the judiciary has full confidence in the process and fully respects the nature of the process. That is reflected in how it engages with the CCRC and the appeals process. He may seek to tempt me, but I fear that on this occasion he has not succeeded.

I note that the CCRC’s analysis has identified other reasons for the recent level of referrals, including the lack of common themes across recent cases and changes in approach by investigators. The CCRC continues to review the reasons for a low referral rate, working with practitioners and academics to ensure that they are aware of any potential new causes of miscarriages of justice.

In February the Ministry of Justice published a tailored review of the commission, as the hon. Member for Ipswich will be aware. The review found that the current delivery model as a non-departmental public body is still the most appropriate. The review did, however, make a number of recommendations relating to improving the commission’s performance. Those recommendations were in part informed by respondents to the call for evidence, who commented that the commission does not provide as timely a service as they would wish. The commission has acknowledged that although internal targets were met, too many cases were taking too long to resolve and more can be done to avoid delay.

The hon. Gentleman has alluded to the amount of time it has taken the CCRC to look at Oliver’s case and the handling of it. The review team found that a single commissioner or a committee of commissioners were making the decisions on the non-referral of cases, despite legislation providing the option for decisions to be made by one or more employees of the commission. The review recommended that responsibility for the final decision on non-referrals in less complex cases should be made by case review managers, rather than commissioners.

[Mr Sheerman]

Before the Minister concludes, will he give way?

[Edward Argar]

I am not concluding just yet.

[Mr Sheerman]

The Minister has four minutes.

[Edward Argar]

Go on, very quickly.

[Mr Sheerman]

Does the Minister understand that many of us got into this issue because of cases in our constituencies? In Huddersfield, I had a tragic case like Oliver’s. Does he realise that even when someone spends 18 years in prison and they come out having been found not ever to have committed a crime, they get nothing?

[Edward Argar]

The hon. Gentleman makes a powerful point, which he has made in our previous conversations. I look forward to picking that specific point up in more detail with him. I think we are due to have one of our regular meetings soon.

As with any case, the CCRC would welcome an application to review Oliver’s case, if new information can be provided. That would be decided by people who have had no previous involvement in the decision making.

Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 9th July 2019 Commons Chamber

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

But the Minister will know that what prisoners need is not only to have been prepared and had training while they are in prison but to have the full monty when they leave. They need housing, an opportunity to work and the full support of a good probation service, as was said by the hon. Member for Bromley and Chislehurst (Robert Neill), the Chairman of the Justice Committee. Does the Minister realise, however, that when people who are found not guilty following a miscarriage of justice come out of prison, they get nothing?

[Robert Buckland]

The hon. Gentleman refers to miscarriages of justice. The prison system is there to deal with the prisoners in front of it, whatever might have happened with the case or proceedings they were involved with. However, he is absolutely right to talk about the need for housing. I am particularly interested in the £6.4 million initiative from the Ministry of Housing, Communities and Local Government, which is working with Bristol, Leeds and Pentonville prisons to support released prisoners into accommodation. I am sad to say that there is a correlation between the lack of secure accommodation and the return to offending.

--- Later in debate ---

[Robert Buckland]

My hon. Friend asks an important question about sentences of indeterminate length for public protection. I assure him that the Parole Board applies the most rigorous of tests before release. Indeed, the number of recalls to prison pursuant to that regime is about 1,000 prisoners. We still have 2,500 within the estate subject to that regime. There are counterweights that suggest to me that some prisoners have been there for too long, but I hear what he says.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

T8. I have an urgent topical question for the Secretary of State. He has always been very good on victim support, and he will be relieved that my question is not about miscarriages of justice. Brake in my constituency works with victims of road crashes and road injuries. It is a very good and unique group, but I have heard that it is losing its grant from the Ministry of Justice. Why would that be?

[Mr Gauke]

I thank the hon. Gentleman for his kind words. Let me look at that particular issue and, if I may, I will write to him.

Serco Justice System

Barry Sheerman Excerpts

Thursday 4th July 2019 Commons Chamber

[Paul Maynard]

The hon. Gentleman raises an issue of which I personally have no knowledge within my own Department, but I am more than happy to offer to raise it with the relevant Government Department he mentioned, and I am sure that it will then get in touch with him to discuss it.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

The Minister has been uncharacteristically defensive and quite strident this morning. Some years ago, I had a hand in using the round robin technique to try to explore just how many of these general service companies were being used by all Departments, and what came out of that involved billions of pounds. That started a real scrutiny of what was happening. Is it not the truth that not just at Serco but at many of these general services companies—I am not ideologically opposed to the private sector providing good services—there was a lack of control and a lack of independent checking? The Serious Fraud Office regularly looks at this company: surely he is not complacent about that.

[Paul Maynard]

The hon. Gentleman accuses me of stridency. I think that is the first time that has happened to me in this Chamber—clearly, I must have had my Shredded Wheat for breakfast. I will have to revisit my breakfast diet, it is fair to say.

I am delighted to hear that the hon. Gentleman has no ideological objection to the private sector having a role; he might want to have a chat with his Front Benchers. We often hear the idea that somehow the private sector cannot play a role but the third sector certainly can. I find that very hard to understand given that they are often supplying exactly the same things. We have areas of social enterprise that sit across the two, for example.

I recognise the point that the hon. Gentleman is trying to make. He is a very diligent Member of Parliament, as Mr Speaker often observes. I look forward to future round robin parliamentary questions from him that will test the mettle of Government Departments yet further.

Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 4th June 2019 Commons Chamber

[Paul Maynard]

I am grateful for that interesting perspective in my early days in the job. I will clearly have to go away and look at what CAFCASS says and does, and I look forward to meeting it. It is important to bear in mind that, in these cases, the interests of the child have to be paramount—the Children Act 1989 is very clear about that, and judges are clear in how they interpret that obligation.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

3. What steps he is taking to improve the post-conviction disclosure regime.

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

If material comes to light that, on the face of it, might cast doubt on the safety of a conviction, the police and prosecuting authorities should disclose it, and where it is alleged that such material may exist, they should co-operate in making further inquiries if there appears to be a real prospect that they will uncover something of real value. Failing that, the function of the independent Criminal Cases Review Commission is to investigate possible miscarriages of justice. Access to information about the cases they investigate is integral to their work, and they have substantial legal powers to secure the disclosure they require.

[Mr Sheerman]

The Minister will know that I welcome part of what he said warmly, but as co-chair of the all-party parliamentary group on miscarriages of justice, I know that in order to challenge a conviction, access to pre-conviction material from the police and the prosecution is very valuable. Most advanced countries have a proper system that makes it much more possible to challenge an unsafe conviction. Can we have further movement on that?

[Edward Argar]

The hon. Gentleman rightly highlights his extensive work in this area. It has been a pleasure to meet him on a number of occasions, and I am due to do so again. As I said, there are considerable statutory powers for the CCRC, but as he knows, the commission can refer only those cases it considers to meet the statutory criteria, and there are no plans currently to review that.

Automatism as a Legal Defence

Barry Sheerman Excerpts

Tuesday 14th May 2019 Westminster Hall

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I beg to move,

That this House has considered automatism as a legal defence.

It is a pleasure to serve under your chairmanship, Mr Owen. We have met in these roles on previous occasions, and you know that I will try very hard to stick to all the rules and obey every indication that comes from the Chair. I can see you are smiling at that, Mr Owen.

This is a difficult subject. Let me first say, as someone who has been in the House a long time, that when we introduced the notion of a smaller debating Chamber—Westminster Hall—a lot of people criticised it and said, “Will it work?” In fact, it is a great asset to Parliament that we can use this debating Chamber for many of the issues that we have great passion about and that we care about. We may raise them in a parliamentary question in the main Chamber, but when we want to go into something in a bit of depth, this Chamber is the right environment in which to do so.

I am tackling today something that I care passionately about, but which is a little bit complex. I confess that although I have a couple of skeletons in my cupboard, in that I have a daughter and a son-in-law who are lawyers, I am not a lawyer, and it is quite a technical area that we are looking at.

Most Members of the House will know by now that I am a passionate campaigner for road safety and ending road deaths. I started the Parliamentary Advisory Council for Transport Safety. Many years ago, my first private Member’s Bill banned children from being carried unrestrained in cars. Then I organised, with a cross-party group, the seatbelt legislation, which was aided a little bit by the Father of the House at the time; the Father of the House now was at that time a young Minister. I am passionate about stopping the waste of life on the roads, and many of the campaigns that I get involved in are about seeing things from the victim’s point of view. I am thinking of the knock on the door. There are several thousand of these cases even in this country today, but there are many more deaths worldwide—1.2 million a year. People will get a knock on the door to say that their daughter or son is dead, or their mum, dad, uncle or aunt is. It is the victim that I am really concerned about, so often, and my passion for this subject comes from the fact that once someone is a victim—once they are dead—they cannot speak for themselves, so it is for us to speak up for them.

Today, I want to talk about automatism, because it is concerning that increasingly we hear of road deaths and road accidents where someone who is driving a car ploughs into a number of people—I will give some examples as I make my case—several people die in this dreadful accident and then the person who was driving the car gets a very good lawyer who says, “Oh, you obviously were in a state of automatism. You weren’t responsible for your action.” That is increasingly being used by well informed and clever lawyers to represent people who get into such a situation, and I want to deal with some particular aspects of that.

I called for this debate because I searched Hansard and was not able to find any mention of automatism since 2008. Back in 2008, two private Members’ Bills were introduced; they related to different aspects of automatism. Automatism can be used in relation not just to road deaths and road accidents, but to rape and murder. The most familiar case of that is when people defend their action of rape or murder by saying that it was automatism; they were sleepwalking and were not responsible for their actions.

Today, I want to tackle this issue, because I believe that there is an injustice out there and I am speaking for the victims who can no longer speak. I have become familiar with many high-profile cases in which automatism has been used as a legal defence to avoid criminal prosecution, particularly in relation to incidents that occur on the roads, although concerns surrounding the use of automatism as a defence are, as I have said, not exclusive to driving offences.

Automatism is a common-law defence used by defendants in court. There are numerous definitions, which makes defining this state difficult, but I will try. An article in the Journal of Forensic and Legal Medicine describes legal automatism as “a state of involuntariness” and says that it

“exonerates the individual because the criminal justice system only punishes those acting voluntarily.”

Automatism is broadly divided into two types: sane automatism and insane automatism. “Sane” relates to cases of sleepwalking, fainting and hypoglycaemic attack, whereas “insane” relates to schizophrenia and diseases of the mind.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I heard about this defence quite a long time ago, in 2002, because of the very high-profile case of Peter Buck, the guitarist in the rock group R.E.M. He was charged for air rage on a BA flight and he did not deny his behaviour, but he claimed that a zolpidem sleeping pill reacted violently with alcohol, turning him into a non-insane automaton—you could say that he was acting “Automatically against the People”. Does my hon. Friend think that in that sort of case, in which there is no injury, automatism is a valid defence?

[Mr Sheerman]

I thank my hon. Friend for that intervention. I was going to mention the R.E.M. case, which, as he says, is a very famous one. Can I come back to that? He is absolutely right, and I will come back to it in a moment.

The requirements of a defence of non-insane automatism—I am not dealing with insane automatism—are that, first, there must exist an involuntary action arising from an external source or reflex action; secondly, the action must be completely involuntary; and thirdly, the automatism must not be self-induced. Some academic literature states that the automatism defence is increasingly being used, but the problem is that no statistics are kept on how often the automatism defence is pleaded or succeeds. The word I hear from the justice system more broadly is when a senior policeman or policewoman comes up to me and says, “Look, we’re in real difficulties prosecuting here, because the defendant is going to use automatism. It’s going to be very, very difficult, because the CPS will be very reluctant to bring the prosecution.” In a sense, what I am trying to bring to the public gaze today is this question: why do we not know how many cases are not proceeded with because the Crown Prosecution Service thinks that it is all too difficult, that the chances of getting a conviction are not good with a clever lawyer using automatism as the reason for the defendant’s behaviour?

I want to give a couple of examples. In 2014, there was the terrible accident in Glasgow involving a council-owned waste lorry that collided with pedestrians in the city centre, killing six people and injuring 15 others. The driver said that he had passed out at the wheel, and he was not prosecuted. Glasgow sheriff court was told that the driver had passed out at the wheel and heard evidence regarding his alleged failure to disclose a history of dizziness and blackouts in job applications and when renewing his licence.

Nicky Selby-Short, a solicitor in Access Legal’s specialist personal injury team, comments:

“There may be occasions when such a defence is entirely justified, but claiming automatism is likely to continue to be used by defendants since it is a good tactic; however, it is accepted it will leave innocent claimants with no award whatsoever for what are often very serious injuries”

and, of course, death.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is of course raising a really important issue, but it is important not to lose sight of the fact that to make out this defence, the burden is on the defendant to advance evidence, which may be in the form of medical evidence. It would be quite wrong to give the impression that somehow a defendant could simply say, “I’m invoking non-insane automatism,” and get off scot-free. The burden is on him to prove it. Does the hon. Gentleman agree?

[Mr Sheerman]

Absolutely, I agree with that, but as I make my case, I think the hon. Gentleman will understand why I am worried about what happens at the moment.

The second case I want to mention is R v. Burton in 2007. An elderly motorist killed a married couple in a high-speed crash and was controversially cleared of all blame by a judge, after claiming that he may have been in a state of automatism at the time. Experts said that retired businessman Arnold Burton may not have known what he was doing when he smashed head-on into the couple’s car, while doing at least 76 mph in a 30-mile speed limit in his Jaguar X-Type.

Leeds Crown court was told that the 89-year-old, whose father founded the Burton clothing empire, could have been suffering from a lack of blood to the brain. Prosecutors decided to offer no evidence on two charges of causing death by dangerous driving after psychiatrists concluded that Mr Burton might not have been aware at the time. The recorder of Leeds, Judge Norman Jones, said that the elderly motorist was “driving automatically” and that his

“brain was not in control of his body”

when the crash happened.

In Glasgow, in 2010, two little girls were killed while Christmas shopping by a Range Rover that hit them on the pavement. The charges against the driver were dropped, because he suffered a loss of consciousness, owing to an undiagnosed medical condition.

[Alex Chalk]

I am grateful to the hon. Gentleman for generously giving way. Where a road accident leads to someone losing a life, one’s heart goes out to the victims and those who are left behind. However, it is important that one injustice is not replaced by another injustice. If it really is the case that that individual was effectively unconscious, surely the hon. Gentleman is not suggesting that he should be criminally culpable none the less. It may be that he should not have his driving licence, but that is another issue. If he is truly unconscious, surely he is not criminally liable.

[Mr Sheerman]

I agree entirely with the hon. Gentleman. I believe in evidence-based policy. We have a great deficiency in the transport safety area that I keep nagging the Government about. In Sweden, every time there is a fatality on the roads, there is a thorough investigation. That does not happen in the United Kingdom. There is no highly skilled investigation of an accident involving a death. There is a real problem finding out what really happened.

I will whisk through the prominent case that highlights how automatism might be used too broadly. It involves Peter Buck from the band R.E.M., who was acquitted of charges of two counts of common assault and one count of criminal damage while being drunk on a plane. There was a good defence. What distinguished Mr Buck’s case from others of this nature was that he raised the defence of automatism in a Court of Appeal, which described non-insane automatism as

“malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences”.

Mr Buck sought to establish that the commission of the offences he was charged with lacked a mental element due to a transitory effect caused by the external factor of red wine combined with sleeping tablets.

However, a defendant cannot simply absolve himself of all responsibility for his actions by blaming pills and alcohol. A self-induced incapacity will not excuse; nor will one that could reasonably have been foreseen, such as the result of taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin. However, Mr Buck produced his prescription bottle, which did not contain a warning about mixing alcohol, so he was acquitted.

While it is difficult to put forward a defence of automatism, once such a defence has been established—this is what legal experts tell me—it falls on the prosecution to disprove the evidence of automatism beyond reasonable doubt. I am not trying to turn the justice system upside down; I am merely shining a light on the increasing use of automatism as a defence.

Forms of automatism have also been used to defend people who have been accused of rape. Sexsomnia is being used internationally. In 2007, in the UK a man was let off for raping a 15-year-old because he claimed sexsomnia. Let us remember that, according to a 2002 London Metropolitan University study, just 6% of cases result in conviction, because of loopholes in the law such as automatism.

Dr Cosmo Hallström, a member of the Royal College of Psychiatrists, said:

“People do sleep walk and they do strange things in their sleep, but it is usually no more complex than grinding of the teeth or smacking the lips—at most they may get up and make a cup of tea. I would think it was extremely difficult to perform such a complex manoeuvre as having sexual intercourse while asleep—especially if the other person is unwilling.”

Harry Cohen spoke on this in the House of Commons only 11 years ago:

“Anybody up in court on a rape charge could get a few friends and family to claim that he sleepwalks, and he will almost certainly get off.”—[Official Report, 15 October 2008; Vol. 480, c. 801.]

Harry Cohen introduced the Rape (Defences) Bill in 2008 to address this. That Bill sought to prohibit the use of a defence of sleepwalking or non-insane automatism in proceedings relating to the offence of rape.

[Alex Chalk]

The hon. Gentleman is being extremely generous with his time. We all want to see more people who are guilty of rape convicted. We all agree that the statistics are shocking. However, on the example that he gave, if the prosecution were able to call evidence to suggest that what was being posited—namely that the defendant raped through non-insane automatism—was a complete fiction and entirely implausible, a jury should have little difficulty giving that defence short shrift and finding the defendant guilty. Does he agree that if it is a bad defence, the prosecution can call evidence to expose it as such?

[Mr Sheerman]

The hon. Gentleman is right, but I am trying to get the balance right. There are so few successful prosecutions for rape and there is an increasing tendency worldwide to use this as a reason why the person—usually a man—was unable to know what they were doing.

In 2008, another good former comrade—sorry, colleague —of ours, Dr Brian Iddon introduced the Road Traffic (Accident Compensation) Bill, which sought to provide no-fault compensation for personal injury in road traffic accidents where liability cannot be established. This is the nub of the matter. However many people are killed or injured in an accident involving automatism, there is no compensation. How can that be just? In such cases, the victim is left injured or killed, but with no compensation for the family. Surely, the Minister would agree that it is time to consider introducing a no-fault compensation system in this area, as is used in other countries such as New Zealand.

We are coming to the end of the story. In 2013 the Law Commission undertook a review and produced a discussion paper called “Criminal Liability: Insanity and Automatism”. It produced a range of recommendations for reform of this defence. I hope that the hon. Member for Cheltenham (Alex Chalk), who intervened on me two or three times, will be able to hear this, because it is germane to his interventions. Much of the report focused on the need for modernisation and reform of the law around insane automatism or the insanity defence. It recommended that the arcane criminal law be reformed by replacing it with the new defence of

“not criminally responsible by reason of recognised medical condition”.

However, it also proposed to abolish the less clearly defined common law defence of automatism in favour of a reformed automatism defence that was clearer and narrower in scope. To the best of my knowledge, the Government have not since acted on those recommendations. I ask the Minister what actions, if any, the Government have taken in relation to clearing up the legal problems identified by the Law Commission. Will the Government undertake to enact any of the proposed reforms recommended by the Law Commission?

This is about victims and justice. What is really going on in the undisclosed statistics from the Crown Prosecution Service? What is going on in the desperately underfunded justice system that we operate in this country? I co-chair the all-party parliamentary group on miscarriages of justice. How many more miscarriages of justice will happen, not because of ill-will or badly motivated, wicked people, but because of a lack of resources, investment and personnel?

There is no scheme in the UK to compensate victims of genuine automatism. A person who is injured through no fault of their own has no opportunity for compensation for what are often serious injuries or death. Sometimes an insurance company makes an ex gratia payment to an injured party, but that is rare. As it stands, the law offers no protection to the often entirely blameless victims of the automatism defence.

It is not surprising that this effective get-out-of-jail-free card is being used more frequently by defendants. Countries that operate no-fault compensation schemes include France—it has implemented a no-fault standard for serious and unforeseen medical injuries, and a fault standard—and New Zealand, which has also put in place a no-fault compensation scheme with the broadest eligibility criteria; the no-fault standard is applicable to any unexpected treatment injury.

On the Crown Prosecution Service and the police, an article in the International Journal of Law and Psychiatry notes that in a criminal trial, it can be difficult to decide whether to hold responsible a defendant who did the act but claims that their mental state was abnormal because of the lack of objective evidence. There is no brain scan or blood test to measure responsibility. The best witness to what was in the defendant’s mind is usually the defendant, who obviously has an interest in what the court decides.

I have always said that we need good evidence-based policy, but we lack the evidence and statistics about how often automatism is evoked as a legal defence. As I talk to people in the police and the Crown Prosecution Service up and down the country, there is a suspicion in my mind that the defence is increasingly becoming a way for well-heeled people who can get the right solicitor to get off dreadful crimes on the road. We know that there is a group of solicitors who can find some defence to get rock stars or people in the public eye off.

Despite many high-profile cases, we do not know how often this occurs. How many cases are not being brought to trial because prosecutors have lost confidence that they can challenge the evidence? How aware are the police, while they are investigating a case, about people invoking automatism? We need evidence to evaluate whether clever lawyers are using the defence to get people off.

This is about justice for people who can no longer fight their own corner. This Chamber is the right environment for this debate, and I hope I have made a coherent case.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Owen. I congratulate the hon. Member for Huddersfield (Mr Sheerman) on bringing this interesting and important issue to the Chamber, and on the eloquent and passionate way that he explained the background. I also pay tribute to him for his work on road safety over the years.

I, too, apologise in advance to any criminal lawyers or criminal law academics who are watching the debate, as I am about to blunder into it with a few thoughts. In years gone by, I was a lawyer, for my sins, but not a criminal lawyer, so I am somewhat reluctant to wade in.

The debate allows us to consider whether the principles behind the defence of automatism are right and to ask whether there is evidence for the term being too broadly defined so there have been unjust acquittals or for it being too narrowly drawn so people have been convicted who should not have been. As has been explained, in simplified terms, the defence of automatism involves the defendant showing that his conduct was involuntary, so he cannot be held criminally liable for it.

Criminal law in England and Wales and in Scotland recognises versions of automatism. That has been developed case by case under common law. Its terminology and operation, in certain circumstances, can look a little strange and dated. There are differences, but both jurisdictions—of England and Wales and of Scotland—have historically made distinctions between, on the one hand, automatism caused by so-called internal factors, which can justify a plea of insanity, although that has changed a bit in Scotland recently, and, on the other, automatism caused by external factors where the defendant was not at fault for inducing that state.

The key point is that, as a broad principle—I do not think the hon. Gentleman suggested otherwise—the idea that someone cannot be criminally responsible for involuntary acts must be right. Convicting a person for involuntary acts would not serve the purposes of the criminal justice system. We cannot rehabilitate someone who needs no rehabilitation, because they did not choose to do wrong, and we cannot deter people if they have no control over what they are doing. It is fundamentally wrong to punish people where there is no responsibility.

The question that has been posed today, however, is whether that is working in practice and whether it is being interpreted too broadly or narrowly. As with any criminal defence, there will be individual cases where some people—sometimes many people—question whether justice has properly been done one way or another. The hon. Gentleman highlighted some difficult and heartbreaking cases.

The hon. Gentleman also flagged up concerns that the defence has been increasingly relied on by criminal lawyers. I confess that I have not picked up on that, but he is obviously far more engaged in the issue than I am. I certainly agree, however, that it would be good to have greater transparency about it. I am interested to know whether the Minister is willing to try to see whether there is a better method to record how often the defence is being used or seems to be a barrier for the prosecution. We need to know what is happening either way.

On the whole, from what I understand, the balance of case law seems to suggest that the courts will usually take a pretty narrow view of the scope of the defence—the word “scepticism” has sometimes been used. As the hon. Gentleman said, several cases involve drivers, some of whom are diabetic drivers. I found the example of Broome v. Perkins in the textbooks, where the defendant, although in a hypoglycaemic state, was found guilty of driving without due care and attention, because from time to time he apparently exercised conscious control of his car by veering away from other vehicles to avoid a collision, braking violently and so on. In the Court of Appeal, it was said that the defendant would need to show that he was totally unable to control his actions owing to an unforeseen hypoglycaemic attack, that he could not reasonably have avoided the attack and that there was no advance warning of its onset.

In Scotland, the jury manual published by the Judicial Institute for Scotland also seems to be strict in setting out the requirements for defending externally caused automatism. It says that

“the external factor must not be self-induced, that it must be one which the accused was not bound to foresee and that it must have resulted in a total alienation of reason amounting to a total loss of control of his actions in regard to the crime with which he is charged…the whole point of the defence is that the accused was suffering from a total loss of control over his actions in regard to the crime with which he is charged. Unless there is evidence directed to this essential point, the defence is not available. It is a point of such importance that it cannot be left to speculation, and a few casual remarks or feelings by the witnesses will not do. There must be clear evidence to support it, and this means that the evidence must be specific on all details which are material.”

[Mr Sheerman]

Does the hon. Gentleman agree that a real problem with medical evidence, if there is no charge, is that it is difficult for the victims ever to understand what the medical reason was? If there is no trial, there is no explanation of what kind of ill health caused the accident. The fact is that many drivers who are not charged continue to drive and may have the same medical condition. That is a real problem. In Scotland, however, there are more advanced laws on many of these issues than we have.

[Stuart C. McDonald]

I would like to think so, but I am not absolutely convinced.

[Mr Sheerman]

Alcohol.

[Stuart C. McDonald]

Certainly, on alcohol, we have taken the step to reduce the limit up to which people can drive to virtually nothing.

As I say, there has to be transparency. I am not aware that this has caused a problem for the prosecution services, but I am now alive to those concerns and I will perhaps try to establish whether that is the case. In some examples, however, when the burden is on the defendant to prove the case, I am not sure that it would stop a prosecution in the first place—the prosecution would proceed and the issues would come out afterwards. I do not have an easy answer, however, and this is something that I definitely need to look into.

Also, when we look at all these things in the round, the prosecution service has to be aware of what other action needs to be taken to stop such things happening again, even if there is not a prosecution subsequent to an accident of the sort that we have been talking about. There are other disposals or actions available, as the hon. Member for Cheltenham (Alex Chalk) said, in relation to making sure that that person no longer drives, for example. However, we need reassurance that that is definitely happening.

In short, the point that I was making there was that what the courts have been looking for is

“a total destruction of voluntary control”,

to quote one case. The hon. Member for Huddersfield has rightly flagged up a number of other areas of controversy. This issue is not just about driving; there have been a number of cases where the defence of sleepwalking has been used in relation to accusations of sexual offences. However, the principle remains that the defence of automatism must be available if the evidence is there to justify it.

Should there be reform at all? In 2010 in Scotland, the internal-cause “insanity” defence was replaced by a mental disorder defence. This requires that an accused, at the time of the conduct constituting a crime, must have been

“unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.”

Then there is a detailed definition of “mental disorder”. As I understand it, that reform has been broadly welcomed. That said, it is only fair to point out that some have criticised the Scottish Law Commission’s report because it ignored “external-cause” automatism, thereby arguably missing the opportunity to ensure that the law here is coherent and comprehensive in relation to what are really two closely related and even overlapping defences.

Of course, the hon. Gentleman referred to the Law Commission in England and Wales, and its report, which I think was done in 2013, when it carried out a similar review. It looked at both types of automatism defence and recommended a new statutory “recognised medical condition” defence, which I think is along the same lines as the Scottish defence. However, it also went for a new and more tightly drawn statutory automatism offence. I also understand that, so far, the Government here have decided not to act on that advice. They might have good reasons for that, but it is obviously up to the Minister to set them out today.

From my point of view, there may well be good reasons for looking at the two sides of automatism together, because it makes a significant difference which is considered, in terms of where the burden of proof lies and what disposals are available to a court if the defence is made out.

I do not come to any fixed conclusion on that, but on the whole I will just say finally that we need defences of this nature to be available to ensure that justice is done. For the most part, the current system seems to be working in practice and the courts have been justifiably restrictive in interpreting the scope of these defences. There will be controversial criminal verdicts—that does not necessarily mean that there is a fundamental injustice in the nature of these defences—but I absolutely take on board what the hon. Gentleman has said today about there being some concern that automatism is being increasingly relied on. That should be looked at. We need more transparency about what is going on—

[Mr Sheerman]

Victims.

[Stuart C. McDonald]

Absolutely—the victims need to know what is happening in a particular case and they also need a full explanation of why any prosecution does not go ahead, including the nature of any medical evidence, if that is at all possible.

I am absolutely alive to arguments for improvement and reform. The hon. Gentleman also made some interesting comments about a compensation scheme. I had not considered that in advance of the debate, but I will go away and consider it too.

I thank the hon. Gentleman again for securing this debate. It has been very interesting and thought provoking, and I look forward to hearing what the Minister has to say.

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is, as always, a pleasure to serve under you as Chair, Mr Owen. It is also a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald); I congratulate him on his speech.

I also refer at the outset to my entry in the Register of Members’ Financial Interests. I am a non-practising barrister now at Civitas Law in Cardiff. I was a practising barrister for a number of years before entering the House, but I practised in criminal law only for a few years at the start of my career at the Bar.

I also warmly congratulate my hon. Friend the Member for Huddersfield (Mr Sheerman) on his opening speech and on bringing this matter before the House. Although they are no longer in their places, I am grateful to my hon. Friend the Member for Leeds North West (Alex Sobel) and the hon. Member for Cheltenham (Alex Chalk) for their contributions to the debate.

I entirely agree with my hon. Friend the Member for Huddersfield about the utility of Westminster Hall, particularly for a debate on an issue such as this, which is very important but none the less quite technical in terms of how we deal with it. I share my hon. Friend’s passion for road safety, and he spoke movingly of a knock on the door bringing extremely bad news about a close family member.

My hon. Friend is also entirely right to say that the automatism defence is little understood, and I think that it is indicative that it has not even been mentioned in Hansard since 2008, which shows how long this House and this Parliament have gone without considering it.

On the issue of statistics, in the past I have argued about statistics in relation to a number of different offences. It is clearly an issue for the Crown Prosecution Service, superintended of course by the Law Officers, to determine what statistics are collected, when they are collected and for which particular offences. Particularly in cases where there are clearly victims who will be extraordinarily affected by the events, it is important that it is transparent as to what has happened at each stage of the process. If something does not reach prosecution in the first place, why does it not reach prosecution? There should be a full explanation. If the matter is discontinued at some stage between charge and trial, why is that? If there is a not guilty verdict in the end, why has that happened? Communication to victims throughout the process is vital.

[Mr Sheerman]

On that point, I said that in Sweden there is an absolutely high-class specialist unit that examines every death on the road, whereas in England and Wales the fact is that there is only very patchy expertise when it comes to investigating such a death. A defence of automatism is quite an unusual thing to happen in a police area and the competences required to investigate it are very specific indeed. Does my hon. Friend agree that, given some of the recent cuts in the police of this country, that aspect of the investigative side of affairs has been badly hit?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right to draw attention to the issue of cuts in police officers affecting things right across the board. Clearly, there are different levels of investigation. For example, if there is an injury in a road traffic accident, that triggers a certain level of investigation, and similarly if there is a death. However, in a sense, the fact that we do not have a body equivalent to the one in Sweden underlines the point that I am making about the need for transparency throughout the process.

By the way, I will also add, regarding the decisions made by prosecutors, that every prosecutor has to apply the code for Crown prosecutors. First, is there a realistic prospect of conviction? Secondly, is it in the public interest to bring a prosecution? If that process is not happening, that needs to be brought to light, and the superintendence by the Law Officers is absolutely vital to ensure that, right through the system, that process is happening. If there is anywhere where it is not happening, that should not be the case.

While I am on the subject of the Crown Prosecution Service, I will refer to the sleepwalking cases that my hon. Friend mentioned. The CPS has recently issued legal guidance about the sleepwalking cases, which should be available to everyone involved in the area, including the prosecutors, on how to challenge the automatism defence appropriately before a judge, if it is raised. If the defence uses expert evidence, which it is likely to, the CPS says this to its prosecuting lawyers:

“Such evidence should always be analysed by an expert for the prosecution.”

That is what we would expect to happen. Indeed, as long ago as 1958, Mr Justice Devlin, in the case of Hill v. Baxter, said:

“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent.”

We would expect there to be experts on both sides in such a case that came before the criminal courts, and for many of the reasons that my hon. Friend outlined during his fine speech that is how it should be, and I would hope to see that in the criminal courts.

My hon. Friend also referred to the comments of the Law Commission on this issue, and I will come on to them with the Minister. Actually, the Law Commission’s document was very useful, in terms of the need for reform in this area. Looking at the defence of insanity—I appreciate that there is a distinction between non-insane and insane automatism, and I will come to that in a moment—in essence, it goes back to 1843. Frankly, it has not changed much since then, which is a real issue.

The Law Commission accepted the principle of the automatism defence, but it made a substantial number of criticisms of it, regarding what has to be done to bring it up to date and make it fit for the modern day. The Law Commission said:

“We take the view that it is unjust to hold people criminally responsible when they could not have avoided committing the alleged crime, through no fault of their own. Put another way, a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law.”

Of course, that excludes situations where the automatism is self-induced, or situations in which, given what someone did, it was foreseeable that they could end up in a particular state. It excludes that, and so it should, because the defence is very narrow in what it refers to.

The Law Commission has made many important criticisms of the law as it stands. First is the criticism that it is technically deficient. We are distinguishing between the mental and physical elements of the crime, but that is not always possible. It is not easy to see possessing something that is illegal to possess purely as an act; there must be the intent to hold on to it, and it is not easy to make that distinction. Secondly, has the law really kept up with developments in medicine, psychology and psychiatry in how we classify mental illness? No, it has not. It has not changed substantially for more than 150 years. Bizarrely as well, this is not available in magistrates court. Why should it be that the defence is applicable in our Crown courts but not in magistrates? That is clearly a loophole that needs to be dealt with.

There is an argument that defendants can find themselves acquitted but stigmatised because of the word “insanity”, which is still used as it is central to the defence. In addition, and as was at the heart of my hon. Friend’s speech, how does the defence sit with the victim’s human rights? Like everyone else, the victim in these cases is entitled to the right to life—article 2 of the Human Rights Act 1998—and where there has been a tragic death that article has been clearly violated.

There is also article 3 on inhuman and degrading treatment, and article 8 on the right to a private life. We really must ensure that the defence, as it is framed today with appropriate safeguards, is compatible with the victim’s human rights. One can understand the situation in the road traffic incidents described by my hon. Friend, where either automatism has ended up, it seems, with prosecutors not seeing the case as passing the evidence test or something has happened further down the line, with victims not being aware of why that had happened. That is a real issue.

[Mr Sheerman]

May I make a cynical point? A road traffic academic expert pointed out to me that it is ironic that the number of cases in which people plead automatism has risen almost exactly in parallel with the use of mobile phones in cars.

[Nick Thomas-Symonds]

There may well be a number of reasons for that; we may simply have more offences. However, I entirely take on board my hon. Friend’s point, and it would indeed reinforce the need for an understanding and an awareness of the defence and why certain cases are not being proceeded with or are not successful.

The other point I make to the Minister is about Parliament as it is at the moment. The Law Commission has papers about reform of the law—not just on automatism, but in many other areas too—that would not be partisan and would be likely to command widespread support. We have not had a vote in Parliament for the past month, so it seems that at this point in our parliamentary history, and when the Law Commission has made recommendations, there is room in the timetable for laws to be introduced. If this situation of so little substantive business continues, real thought ought to be given in Government to at least trying to use the time productively on matters that, while perhaps not partisan, would make a big difference to the lives of our constituents.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

I suspect I will, Mr Owen. It is a pleasure to serve under your chairmanship.

I congratulate the hon. Member for Huddersfield (Mr Sheerman) on securing this debate on automatism as a legal defence. I am conscious of his work in this area and across a range of aspects of the operation of the law, particularly regarding the impact on victims. I know that he has taken a particular interest in a number of tragic cases. Although he will appreciate that I cannot comment on individual cases, especially where charging decisions are concerned, I know his work in the area.

Given the limited examples of the use of automatism as a defence, it might be worth elaborating a little, as other hon. Members have, on the current law and its operation. I will also seek to share the Government’s general approach to reform of the law in this area, and the Law Commission’s.

Generally, automatism is a defence to a criminal charge where the defendant’s consciousness was so impaired that he or she was acting in a state of physical involuntariness. It is more than not intending something to happen; it is not being aware of those actions. There are two distinct types of automatism. First, there is insane automatism, which stems from an internal cause or disease of the mind. Where this occurs, the proper verdict is not guilty by reason of insanity. Secondly, there is sane or non-insane automatism, which stems from a cause other than a disease of the mind, an external cause that leads to a loss of control. Where this occurs, the proper verdict is not guilty. The hon. Member for Huddersfield suggested, and I think I am quoting him accurately, that there was an increasing tendency by clever lawyers to seek to use this defence, but I have to say that there is no evidence of that. He himself mentioned the stats, and this comes back to the statistical point, which I will touch on shortly. As always, the hon. Gentleman makes his point forcefully, to highlight the issue that he believes is behind this.

[Mr Sheerman]

How do we know how many times the Crown Prosecution Service does not prosecute because it thinks it will not be able to get a conviction because of the use of automatism?

[Edward Argar]

I will come back shortly to the two tests that the shadow Solicitor General mentioned. On the statistics point, it appears that automatism is rarely used as a successful defence, and that sane automatism, which is what most people assume that to be, is extremely rare because it is very hard to prove. However, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) also made the point about the statistics. It is a matter for the CPS, but we can take back to that service and to other agencies the question of examining whether there are better ways to identify trends and the statistical evidence bases underlying them. I do not have an answer now, but that is something we can take away and look into.

--- Later in debate ---

[Mr Sheerman]

I was lucky enough to have had my undergraduate and postgraduate education at the London School of Economics, whose motto is “To know the causes of things”. A few weeks ago, I had never heard of automatism at all. When it started cropping up in my consciousness, I thought, “This is the right place to bring it up, to see whether we can shed some light on it.” That is what we do well in Parliament.

I have been well served by the shadow Minister, the Minister, and those others who have contributed. We have shed some light on an important topic that many people knew little about, and I think this will go down as a historic debate. I hope we will come back to this issue, and that the improvements to the law that the Minister suggested might come about in the not too distant future.

Question put and agreed to.

Resolved,

That this House has considered automatism as a legal defence.

Oral Answers to Questions

Barry Sheerman Excerpts

Tuesday 23rd April 2019 Commons Chamber

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Does the Minister agree that the tragic victims are those people who cannot speak because they have been killed by an accident or a violent crime? Will he meet me to discuss the case of a bereaved family whose little girl was killed 15 months ago as a driver crashed into a bus queue? The driver not only killed the little girl, an only child, but seriously injured another woman. They have not been prosecuted. Can we have a chat about that?

[Edward Argar]

I would not want to comment on specific cases on the Floor of the House, and although decisions on prosecution are not a matter for Ministers, I would, as always, be very happy to meet the hon. Gentleman.