Anti-social Behaviour, Crime and Policing Bill

Jack Dromey Excerpts

Tuesday 4th February 2014 Commons Chamber

[Damian Green]

No; my difference with the Lords amendment is that it would leave applicants less clear about what to do. This would result in a large number of cases backing up in the courts waiting for judges to interpret what Parliament meant by the legislation, just as there are at the moment. The purpose of my proposal today is twofold: first, to meet the reasonable objections that have been raised about the original Government proposal; secondly, to provide greater clarity so that the House can speak with as clear a voice as possible in these difficult areas and not leave the field open to judicial interpretation, which can take a long time and which provides uncertainty for applicants.

I am aware that, in both Houses, there has been a misconception that applicants would somehow be required to prove that they did not commit the offence before compensation could be considered. I can categorically say that that is not the case. Applicants do not have to prove anything under the existing criteria, and nor would they have to do so in future under this proposal. Applicants need only rely on information that is already available to them as a result of their appeal process.

The test provided for in the Bill on its introduction was one that Labour was perfectly content to operate while it was in office. I hope that the new definition, which attempts to address the concerns that have been raised, will therefore have the support of the Opposition. I hope that they will now reconsider their position so that the Bill, and the many important measures it contains, can swiftly secure Royal Assent.

[Jack Dromey (Birmingham, Erdington) (Lab)]

Justice demands that those who are guilty of serious offences should be held to account and brought before the courts, especially in the case of heinous offences such as the murder of a child or a terrorist outrage of the kind that the city I am proud to represent suffered in 1974, with the appalling Birmingham pub bombings by the Provisional IRA, in which 21 innocent civilians were murdered. The victims of such crimes deserve no less than having the perpetrators brought to justice. Justice also demands that the innocent should not be found guilty, however. When serious miscarriages of justice occur, it is right that the innocent have access to justice and are able to be compensated for them.

I am proud of the system of jury trial in this country. I fought for many years to defend it, as a member of the executive council of the then National Council for Civil Liberties, now known as Liberty. Trial by jury is one of our great British institutions. In the words of the jurist Lord Devlin, each jury is a “mini Parliament”, and trial by jury is

“the lamp that shows that freedom lives”.

Juries can get it wrong in certain circumstances, however: when evidence is withheld from or not disclosed to the defence, as in the case of Sally Clark; when new forensic evidence shows that the person charged and convicted was in fact innocent, as in the case of Mary Druhan; or when evidence is extorted as a consequence of outrageous and unacceptable pressure in a police station, or when it is manufactured, as in the cases of the Birmingham Six and the Guildford Four. When we debate the importance of compensation for the victims of miscarriages of justice, it is worth reflecting on each of those sets of circumstances.

Sally Clark was a practising solicitor. She was traumatised by the sudden death of her child. She was wrongly accused of murdering her child, and went to prison. When she came out, she was a crushed woman, and she died not long afterwards. Mary Druhan was convicted of arson. In a powerful speech in the other place, Baroness Kennedy of the Shaws described how Mary Druhan had served 11 years in prison, and how she had become so institutionalised that when she came out, she was unable to negotiate public transport. She was also traumatised by the tragic suicide of her daughter while she was in prison.

At a time in our history when the country was reeling from the horror of terrorist violence, what happened to the Birmingham Six and the Guildford Four was absolutely wrong. The Birmingham Six were beaten, brutalised and wrongly convicted. They served 16 years in prison. In the case of the Guildford Four, I will never forget when they walked to freedom and Gerry Conlon stood on the steps of the Old Bailey and said that his dad had died in prison. Such serious miscarriages of justice are mercifully rare—there are typically only a couple a year—but it is absolutely right that compensation should be available for the innocent victims who have suffered as a result of them.

At the very heart of our legal system lies the principle that a person is innocent until proved guilty, and rightly so. It is for that reason that Labour tabled an amendment on Report to ensure that that age-old principle was upheld. I said then, as I do now, that I agreed that the Government were right in principle to include in the Bill a statutory definition of the cases in which compensation should be paid for a miscarriage of justice, in order to secure greater certainty in this area of the law. However, the Government’s proposed changes today seek to redefine the compensation test, limiting it to circumstances in which a

“new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”

of which he or she was convicted. That seems to fly in the face of the age-old principle. Worse still, the Government’s proposal will lead to the Secretary of State passing judgment on whether or not a person is innocent. Requiring the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers, in cases that are among the most sensitive.

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[Rehman Chishti (Gillingham and Rainham) (Con)]

The hon. Gentleman talks about the issue of innocence and the test that is to be applied. Like me, he is aware that Barry George was convicted of the murder of Jill Dando, was then acquitted and then lost his appeal for compensation. What does the hon. Gentleman say about that case?

[Jack Dromey]

First, the number of people who receive compensation every year is a handful—it is less than the number of fingers on a hand. There is no automatic entitlement to compensation, and each case is considered on its merits. Secondly, I have rightly focused on cases where people are absolutely entitled to receive compensation for the trauma they suffered as a result of being wrongly convicted and spending many years in prison, and I hope the hon. Gentleman would agree on that.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I share the hon. Gentleman’s concern about the cases he has cited and the appalling years that these people spent, without obtaining justice in the form of compensation. We need to recognise where we agree: there is a consensus in the House on achieving justice for these people. He mentioned the innocence test. Amendment (a) would do away with the language of “innocent” and replace it with a test of “did not commit”. What is the substantive difference between that and the Pannick amendment, which I understand he supports and which also requires that the burden is to prove

“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”?

There is still a burden to provide conclusive proof, so what is the substantive difference between it and the “did not commit” test that the Government are now proposing?

[Jack Dromey]

In English law, someone is innocent until they are proved guilty. Let me contrast the three different formulations. The Lords amendment would mean that the new or newly discovered fact showed

“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.

The Government’s original clause would have required that the fact showed

“beyond reasonable doubt that the person was innocent of the offence”.

Amendment (a) in lieu of the Lords amendment repeats those tell-tale words of “beyond reasonable doubt” and proposes a test that the person “did not commit” the offence. We strongly believe that the formulation from the other place provides a much more appropriate test, and that the amendment in lieu is about making it more difficult for victims of miscarriages of justice like those to whom I have referred to receive compensation. Indeed, two of the Birmingham Six have expressed the view, following legal advice, that they might not have been entitled to compensation under the Government’s proposed changes.

[Mr Burrowes]

We are talking about where the burden lies so we are dealing with the difference between a test of “beyond reasonable doubt” and one of proving “conclusively”. This is not about distinguishing “innocence”; the debate was had in the Lords and there has been a recognition that we need to have reference to a “did not commit” test. I am trying to work out where we differ on this. Are we differing about whether something should be proved “beyond reasonable doubt” or just be proved “conclusively”? If so, what is the substantive difference between proving “conclusively” and proving “beyond reasonable doubt”?

[Jack Dromey]

As a lawyer, the hon. Gentleman will know the difference between providing conclusive proof and proving something beyond reasonable doubt. I stress again that the essence of our argument, and that supported by all parties and Cross Benchers in the other place, is that an individual is innocent until proved guilty. We see no good reason why a victim of a miscarriage of justice should suffer a “beyond reasonable doubt” test.

[Jeremy Corbyn]

Is not the Barry George example one we should think about carefully? He was convicted and spent a lot of time in prison but was later released as “not guilty” of the offence. He was then denied any compensation. Is the amendment in lieu an attempt by the Government to deny people compensation, and thus save money? Or is it a return to the slack days when a large number of people were wrongly convicted? The Criminal Cases Review Commission, which gave evidence last week to the Select Committee on Justice, confirmed that more than 500 people had been released from prison as a result of its intervention—I believe that is the correct figure.

[Jack Dromey]

There is a widespread view, reflected in the debate in the other place—someone talked about “incredulity”—as to why the Government are introducing such a test. A statutory definition providing greater clarity, particularly in the light of some of the cases that have gone before the courts, is one thing, but making it more difficult for people to receive compensation for serious miscarriages of justice is something altogether different. As the Barry George case shows, very few people are receiving compensation. The fear expressed in the other place is that the Government’s proposals will make it yet more difficult to obtain compensation for a miscarriage of justice.

[Mr Burrowes]

We all want clarity, so let me try to understand the difference between “conclusively” and “beyond reasonable doubt”. Are we talking about a balance of probabilities—whether something is more likely than not? Or are we talking about proving something beyond reasonable doubt, so that people are satisfied and sure? Is “conclusively” a balance of probabilities test, a beyond reasonable doubt test or something else? If it is something else, that wording does not provide the clarity we all seek.

[Jack Dromey]

As an eminent lawyer, the hon. Gentleman will know that “beyond reasonable doubt” has a very clear standing and purpose in our criminal justice system.

[Mr Burrowes]

Which is it?

[Jack Dromey]

We believe it is inappropriate for the test to be pitched so high; a “beyond reasonable doubt” test will make it more difficult for victims of miscarriages of justice to obtain compensation.

[Mr Burrowes]

rose—

[Jack Dromey]

I have given way three times and have been more than happy to do so, but let me continue now.

For all the reasons I have described, Labour tabled an amendment on Report in this Chamber and then wholeheartedly backed the amendment in the name of Lord Pannick in the other place, which would ensure that compensation should be paid only if the new or newly discovered fact showed conclusively that the evidence against the defendant at trial was so undermined that

“ no conviction could possibly be based on it.”

That clearly provides a statutory definition and greater certainty in this area of the law, while adhering to the age-old principle for which I have argued so strongly. When the Court of Appeal has quashed a conviction, it is simply wrong then to require the defendant also to establish beyond reasonable doubt that he or she is, to all intents and purposes, innocent. Such a provision is incompatible with the presumption of innocence.

The framework for which I am arguing already applies in the Supreme Court, where it was brought in by the then President, Lord Phillips of Worth Matravers, who strongly supported the Pannick amendment in the other place, and indeed in the European Court of Human Rights. Indeed, the Joint Committee on Human Rights has said:

“in our view requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence which is protected by both the common law and Article 6(2) ECHR.”

It is worth stressing again that the amendment from the other place is not about giving people more compensation automatically or making it easier for people to get off on technicalities and then to claim compensation in all circumstances; it is about serious and rare cases in which it is entirely appropriate that the victims should receive compensation. As our amendment makes clear, asking people to prove their innocence beyond reasonable doubt is an affront to our system of law, and denying compensation to those who have been wrongly convicted is an affront to a decent society. Many Members of this House, including my hon. Friend the Member for Hayes and Harlington (John McDonnell) and the hon. Member for Foyle (Mark Durkan), have campaigned for many years on miscarriages of justice.

The simple fact is that our legal system is not perfect, and cases do go wrong. It is a tribute to our legal system that miscarriages of justice are rare, but when they do happen, it is simply wrong to expect those who have suffered to prove to all intents and purposes that they are innocent beyond reasonable doubt—it is adding to the injustice that they have already suffered.

As I argued at the start of my contribution, miscarriages of justice lead to ruined lives. Families are destroyed. People leave while their partners sit wrongly behind bars. Jobs and homes are lost and people’s reputations are left in tatters. The mental despair and anguish are never fully resolved, which is why victims of miscarriages of justice need real help on their release. People’s lives can never go back to how they were. That is where we, as a decent society, have to make amends, and that is what our amendment does.

In conclusion, I urge all Members of this House to support a rigorous and fair justice system that sticks up for its founding principle of people being innocent until proved guilty; that rejects the notion of “beyond reasonable doubt” to obtain compensation; that ensures that where a serious miscarriage of justice has happened, innocent people receive fair compensation for all they have suffered; and that reflects rulings already set out in the Supreme Court and the European Court of Human Rights. In short, we want a justice system that is serious about putting right serious injustice.

[John McDonnell]

To be frank, I am absolutely confused about where we have got to. I am confused over the difference of interpretation between innocence and “did not commit”. If someone wants to intervene on me at this stage I would be really grateful, because I cannot see the difference.

My hon. Friend the Member for Birmingham, Erdington (Jack Dromey) has explained the implications of the proposal with regard to the Birmingham Six and Guildford Four. Let me put the situation in context following my involvement in the case of the Guildford Four. A number of people are locked up for many years. When they come out, they have nothing—no accommodation and no employment. The financial compensation they receive is relatively minimal compared with the suffering that they have gone through, and it is desperately needed to ensure that they have a chance of some form of normal life in the future.

In the case of the Guildford Four—it was the same in the case of the Birmingham Six—we found that not just the prisoners but whole families were devastated. There have been suicides in the family of Paul Hill. As my hon. Friend the Member for Islington North (Jeremy Corbyn) knows, the lives of Errol and Theresa Smalley have been permanently damaged. The whole family network has been damaged as a result of that case. Gerry Conlon admitted it when he came out of prison. He was addicted to drugs, because that was the only way he could cope. The state pays compensation to try to do whatever it can to remedy the injustice that took place.

The cases of the Guildford Four and the Birmingham Six went to court and were quashed because the forensic evidence demonstrated that confessions were made under duress and that documents were tampered with. When they left court, it was on the basis that the system had failed in due process to prove that they had committed the crimes for which they were brought to court. We then went through a negotiation process, which was quite bizarre; I did not realise that, under the existing compensation arrangements, their compensation would be reduced to pay for accommodation charges while they were in prison. It was a real struggle to get that compensation. The Minister says that this is not the case, but under the proposed system, if a case is quashed on the basis of that type of evidence, the defendants will have to go to another level of proof to get any compensation. They will have to demonstrate not that the process was faulty in the first place and that they should never have been caught, but that they did not commit the crime, which is having to prove innocence. That is almost impossible, for any of us. Trying to prove that negative is contrary to everything in English law, and practically impossible to do.

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[Damian Green]

With the leave of the House, Madam Deputy Speaker, I will respond briefly to some of the important points that have been made during this debate.

Taking this back to first principles, the domestic courts have always made it clear that compensation should be paid when the new facts that form the basis on which a person’s conviction was quashed clearly show that the applicant did not commit the offence. However, the courts have never been able to define without ambiguity a stable and robust test. Given the courts’ difficulty in this area, we decided to create a clear and definitive statutory test, the requirement for which is supported by Parliament and others, including the Joint Committee on Human Right, although I appreciate not by the hon. Member for Hayes and Harlington (John McDonnell) and conceivably the hon. Member for Foyle (Mark Durkan), although he did not address the point.

With regard to the test, we have sought to provide an amendment that recognises that compensation should be paid only to those who genuinely warrant it. What we require to achieve that is for the new fact to demonstrate that the applicant did not commit the crime—I addressed the various situations in which that could be shown—and that this should be evident from the reasons outlined in the Court of Appeal’s judgment that led to the quashing of an applicant’s conviction. The applicant does not have to prove their innocence—in other words, the reversal of the burden of proof, which Members have mentioned. That is simply not the case. The reasons why the applicant could not have committed the crime will be evident from what is outlined in a successful appeal.

The hon. Member for Birmingham, Erdington (Jack Dromey) talked about the Sally Clark case. Obviously it is difficult to say how we would consider any applications where compensation would be payable under the new test in the abstract. We have heard much mention of their lordships’ discussion of this. On Report in the Lords, there was disagreement between two eminent lawyers as to the facts of the case that would be fundamental in consideration of an application for compensation. Great lawyers can disagree about that, but what we do know, and what therefore cannot be in dispute, is that the Secretary of State did grant compensation in that case.

[Jack Dromey]

Just for the record, Lord Saville of Newdigate, Lord Phillips of Worth Matravers, Lord Hope of Craighead and Lord Scott of Foscote, who are members of the Supreme Court, all supported amendment 112. Why is the Minister pitching this at the level of beyond reasonable doubt?

[Damian Green]

I should point out that Lord Brown disagreed and that the Supreme Court’s judgment in the Adams case was five to four. It genuinely is the case that our most distinguished lawyers were very close to disagreeing.

On the question of beyond reasonable doubt, the ambiguity we seek to resolve with our amendment (a) is illustrated not just by the 13 cases currently awaiting consideration by the administrative court, but by the disagreement between the lawyers in the House of Lords about whether Sally Clark would not have qualified for compensation under that test. The fact that the hon. Gentleman could not tell my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) whether the test he supports—the conclusive test—is one of beyond reasonable doubt or of the balance of probabilities reflects that test’s inherent ambiguity.

There is nothing new in the “beyond reasonable doubt” test. The existing provision in section 133 of the Criminal Justice Act 1988 already requires a miscarriage of justice to be shown to have occurred beyond reasonable doubt. The Government, therefore, are not introducing a new test. The aspect on which the hon. Gentleman and the hon. Member for Foyle have laid such great weight is already in the 1988 Act, which we are seeking to improve.

The hon. Member for Hayes and Harlington made a reasonable point. He does not think that Parliament should get involved at all and that we should just leave it to the lawyers. I disagree with that argument and so do most people who have addressed the issue. I think we should try to set out a clear, unambiguous basis for the payment of compensation.

I return to the basic point that where the new fact which underpins the quashing of the conviction clearly shows that the offence did not happen, that the applicant could not have carried out the offence or that someone else carried out the offence, that would qualify as a miscarriage of justice. That seems to me to be clearer and less ambiguous than what we have at the moment. It will not deny anyone who genuinely deserves compensation from getting it.

Question put, That this House disagrees with Lords amendment 112.

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[Dr Huppert]

I was somewhat surprised by the original amendment passed in the other place, which was backed by many, including Labour peers, because it wrote into law discrimination that I would not be happy with. We have rules about behaviour that is unfair—behaviour that is too harsh—but I was really surprised to see an amendment that said there should be one set of rules for people in social housing and a completely different set of rules for people in private housing. If someone’s behaviour is causing problems that are sufficiently serious to be dealt with under the Bill, the form of tenure should not matter. I was very disappointed by that amendment and very pleased that the Government corrected it. What we now have corrects that problem and I am happy to support it, because I would not have been able to support the previous version from the Lords.

[Jack Dromey]

Just for the record, the proposal for a tenure-neutral approach in fact came from Labour Lords.

[Dr Huppert]

I do not have the list of exactly who proposed what. The Government amendment we have is neutral; the one that Labour peers supported in the other place was not tenure-neutral. I hope the hon. Gentleman agrees that that was a flaw in it, although the other principle was there.

I welcome the change, although I remain surprised by the position of the Opposition, who felt that the version that left this place was both too draconian and too liberal. I am glad that their position has moved in a more liberal direction. The new approach is far better than the failed system of ASBOs, which many young people collected as a badge of honour. A huge number of people broke them; they simply did not work. I think that this non-criminalising approach will work much better.

Let me turn now to some of the other issues. Lords amendment 10 is important and concerns the principle that we should not be using these rules to throw children out of their own homes. The Lords pushed for that, and it is a shame that we did not manage to get it fixed in this place. The importance of care for the under-18s should have been emphasised more strongly during the Bill’s earlier stages, and I am glad that it has been emphasised more strongly now. This is another of the issues that were dealt with by the Home Affairs Committee. I am also pleased that Lords amendment 11 proposes the removal of clause 13, because it discriminated on the basis of tenure.

Lords amendments 23 and 24 deal with the rights of free expression and free assembly. The Home Affairs Committee recommended that we should ensure that dispersal powers were not used in a way that could damage those rights. Before my hon. Friend became a Minister in this Department, the Government moved some of the way towards this, and I am glad that he has now been able to persuade them to move the whole way, so that we can protect all forms of free expression and free assembly.

Lords amendments 59 to 64 deal with cases of riot. Riot is of course very serious, and we have already seen what it can lead to in this country. As a result of what happened, the Prime Minister said that he wanted stronger powers to deal with the families of people who were rioting. Many of us felt that, although we could understand the tensions that existed at the time, his suggestion went too far. It did not seem appropriate to throw everyone out of a house because a 16-year-old child had committed a minor offence where a riot was happening. I do not in any sense condone either the riot or the behaviour, but throwing an entire family out of their home seems to be a disproportionate response. I pay tribute to my hon. Friend the Minister for his work in this regard, which has led to the proposal that an automatic eviction should take place only if the offence is committed by an adult, and only if it is a serious, indictable offence. A trivial offence that happened to be committed near a riot would not lead to such an eviction; nor would an offence committed by a child.

Finally, let me raise two issues that we had very little time to discuss during our initial debates in this House, and that were not particular topics of interest at that stage. The first involves surveillance and the Terrorism Act 2000. Lords amendment 102 and related amendments deal with the powers of the Investigatory Powers Tribunal to deal with complaints about the surveillance commissioners and their decisions. The IPT does not necessarily work as well as it needs to, and it is not as transparent and open as it needs to be, but I am glad that we are taking a step towards more transparency. Surveillance oversight is an extremely important subject, and the Bill does not finish what we need to do about it. There is much more to be done, but although the amendments represent just a tiny piece of the jigsaw, I welcome them.

Lords amendment 100 and related amendments deal with schedule 8, which amends schedules 7 and 8 to the Terrorism Act. Schedule 7 became very topical at the time of the detention of David Miranda. I am pleased that, after a great deal of argument in this House, we have managed to get some changes made in the House of Lords. People must be questioned within an hour of detention, reviews must take place within two hours of that, and people’s right to consult a solicitor is made clear. That fundamental right was omitted by the Terrorism Act when it was passed by the last Government. There is much more to be done about that as well, but I am very pleased with all the amendments. I commend the Minister and his team for their work, and look forward to our passing the amendments promptly.