Anti-social Behaviour, Crime and Policing Bill

Lord McNally Excerpts

Tuesday 12th November 2013 Lords Chamber

[Lord Hope of Craighead]

My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.

On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.

I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.

On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.

Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:

“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.

Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.

That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.

Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.

The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.

Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.

That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.

It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.

We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.

--- Later in debate ---

[Lord McNally]

It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.

A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.

The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.

It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.

Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.

Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.

I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.

Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.

The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.

I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.

[Lord Beecham]

I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.

[Lord McNally]

My Lords—

[Lord Beecham]

My Lords—

[Lord McNally]

I know that the noble Lord is under pressure.

[Lord Beecham]

I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.

[Lord McNally]

I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.

This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.

The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.

I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.

I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.

--- Later in debate ---

[Lord Pannick]

My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.

Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.

I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.

[Lord McNally]

My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.

[Lord Pannick]

I am very much obliged to the Minister. I beg leave to withdraw the amendment.