Anti-social Behaviour, Crime and Policing Bill

Lord Cullen of Whitekirk Excerpts

Wednesday 22nd January 2014 Lords Chamber

[Lord Brennan (Lab)]

My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.

My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was an innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.

Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.

Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.

In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.

Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.

That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.

[Lord Cullen of Whitekirk (CB)]

My Lords, I shall say something briefly about the reasons put forward by the Government in the past for the amendment to the law which is sought to be effected by Clause 161. In fact, as far as I can see, they have put forward two different explanations for this change in the law. The first is that there is said to be a doubt as to how the category of cases recognised in Adams should be formulated. I mention that in case the point is renewed again today. In his letter to the chairman of the Constitution Committee of this House, dated 11 November 2013, the noble Lord, Lord Taylor of Holbeach, said that there was a doubt created by the later decision of the Divisional Court in the case of Ali in explaining the effect of Adams. However, the formulation adopted by the court in Ali was rightly criticised at the Committee stage of this Bill. In any event, if there were a doubt as to how the category should be formulated, it is odd, if not extravagant, to deal with that doubt by getting rid of the category altogether, which is the effect of this proposed amendment to the law.

The second explanation, to which all the speeches today have been directed, is to do with whether one course or the other should be taken, with the Government preferring the narrow approach. As the noble Lord, Lord McNally, said in Committee:

“We do not believe that it is necessary to pay compensation more broadly than this”.—[Official Report, 12/11/13; col. 704.]

No doubt, Parliament can overrule a decision of the Supreme Court, but the question is whether it is appropriate that it should do so. I entirely agree with the eloquent speeches made today in support of the amendment.

[Lord Beecham (Lab)]

My Lords, the whole House, and perhaps more importantly, our whole system of justice, is deeply indebted to the leading lawyers who have addressed us today, noble and learned Lords who have served in the highest judicial offices and others who have practised the law in the areas that we are concerned about. We are equally indebted to the one non-lawyer who has spoken in this debate, the noble Lord, Lord Cormack. The humanity and power of the case that he has put has informed the debate in a slightly different way, and one that I very much welcome.

The rationale for the Government’s proposals on compensation for those who have suffered miscarriages of justice is set out in the impact assessment that they published in May 2013 under the elegant rubric of “Other key non-monetised benefits by main affected groups”, which states that the narrower test—that is, that contained in the Bill—

“is likely to result in fewer unmeritorious claims as a result of the greater clarity of the test”.

This assertion rests on two flawed premises. The first relates to the term “unmeritorious claims”, since the effect of the Bill would be to, and is clearly intended to, render claims unmeritorious by virtue of failing the very test that the Bill imposes—that is to say what may now be justiciable ceases to be so because of the new requirement to prove innocence beyond reasonable doubt. Thus we have, in effect, a circular justification.

The second defect lies in the bland assertion that the test supplies greater clarity. But as I, and others more learned than I could claim to be, pointed out in earlier debates on this issue, the law is clear. It was established by the Supreme Court in the Adams case, albeit by a narrow majority, and encapsulated in the judgment of the noble and learned Lord, Lord Phillips, reflected exactly in the wording of this amendment. The Supreme Court is not conducted on the model of Lincoln’s cabinet, in which it may be recalled that a proposition which was opposed by every member save the President passed only on the latter declaring “the Ayes have it”. The decision was a decision of the Supreme Court. The Supreme Court has clarified the law.

The Adams case was followed by the Ali case in the Court of Appeal in which, quoting Adams, Lord Justice Beaston declared that,

“it is therefore now clear that the concept of miscarriage of justice under s 133 (of the Criminal Justice Act 1988) is broader and does not only cover those who show they are demonstrably innocent”.

I add, in parenthesis, as I said in Committee, and as the noble Lords, Lord Wigley and Lord Cormack, said today, that proving a negative will often be impossible. Those words were echoed by the noble Lord, Lord Brennan, whose experience, I respectfully suggest, is particularly relevant to the deliberations of today and to the outcome of this debate. It is true that the Ali case offered a somewhat different form of words, which I found seductive enough to adopt in the amendment I moved in Committee, but, of course, the formulation of the Supreme Court takes precedence. Having, as I said I would, given further consideration to the matter, I am content to support the amendment of the noble Lord, Lord Pannick, which would enshrine in statute the essence of the Adams judgment. I fear that the Government—before the Minister joined them—have sought to perpetrate the parliamentary offence of attempting to obtain legislation by false pretences. I hope that he will not make himself an accessory to the crime.