Anti-social Behaviour, Crime and Policing Bill

Mark Durkan Excerpts

Tuesday 4th February 2014 Commons Chamber

[Damian Green]

A lot of the debate was about the nomenclature—the thought that we were asking people to prove their innocence. I have just explained the effect of the new clause: if a new fact emerges that on its own shows the person could not have committed the offence or that an offence may not have been committed, that would entitle that person to compensation. Throughout this debate people have recognised that it is not simply a question of being declared innocent that requires a miscarriage of justice to be called.

[Mark Durkan (Foyle) (SDLP)]

Further to that point, will the Minister explain how it would be different for someone to prove they did not commit an offence, as opposed to someone being expected to prove their innocence? What is the difference in terms of the burden of proof?

[Damian Green]

The point is that nobody has to prove that they are innocent. We are not requiring them to do that. There requires there to be evidence that shows that they could not have committed the offence because they were somewhere else, for example, or because there is new DNA evidence or the offence has not been committed. That is the material difference between the two.

--- Later in debate ---

[Damian Green]

The hon. Gentleman may disagree, but he will have his chance to contribute to the debate.

We are seeking to provide greater clarity, which is why we are unwilling to accept the Lords amendment. We have listened to those who consider that the express reference to the concept of innocence is problematic. That is what lies at the heart of this change. Our amendment in lieu is intended to take this concern into account by removing what has been until now the controversial aspect of this clause: the use of the word “innocent”. I hope that removing the express reference to innocence will make our respect for the presumption of innocence clear, and I hope I can allay the concerns expressed by hon. Members.

We remain strongly committed to ensuring that compensation is paid only to those who genuinely warrant it, however. In our view compensation should be paid only to applicants where it is shown beyond reasonable doubt that they did not commit the offence. We believe that this change takes into account the points made in the House of Lords, which we have carefully considered. As Lord Phillips said in that debate, the primary objective of section 133 of the Criminal Justice Act 1988, which this clause would amend, is to provide redress to an applicant who has been convicted when he or she was in fact innocent. He also considered that its second and subsidiary objective was to ensure that an applicant whose conviction had been quashed but who had in fact committed the offence charged should not be compensated. Our proposed test goes a long way towards achieving both of those objectives. We consider that, while the definition of a miscarriage of justice for which we are seeking to legislate is drawn narrowly, it nevertheless provides for a range of circumstances in which compensation should rightly be paid to help people who need to rebuild their lives after suffering great injustices.

Throughout our debates, much has been said about the views of the European Court of Human Rights on compensation for a miscarriage of justice, and I am again grateful to Lord Phillips, who commented on this so succinctly during the debate on Report in the Lords. He stated:

“In substance, whatever interpretation is given to miscarriage of justice, something more than quashing a conviction is properly required”.—[Official Report, House of Lords, 22 January 2014; Vol. 751, c. 680.]

This much can be gleaned from the four most recent decisions of the European Court on this issue. Today, our business is to determine precisely what that “something more” is. We believe that the definition we are now providing in our amendment will make it easier for applicants to assess whether they should apply for compensation, and will make decisions on eligibility easier for the applicant to understand and less likely to be the subject of legal challenge, as my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) made clear a moment ago.

[Mark Durkan]

Surely the Government’s amendment would not make it easier for the applicant to decide. Would not the Lords amendment make it easier to decide?

[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.

--- Later in debate ---

[John McDonnell]

In my view, the Government’s test is faulty. I am not convinced of the need for this additional test anyway. At least the House of Lords edges towards some greater level of fairness. I would rather give up on this attempt to redefine.

The hon. Member for Gillingham and Rainham (Rehman Chishti) raised the case of Barry George. There has always been an ability in our system for the court awarding compensation to take into account whether the person contributed towards their plight. That has an effect on compensation levels or even whether compensation is awarded at all. By seeking to arrive at some definition in legislation, we are digging ourselves into a very complicated and costly hole, and that cost will be on the individuals who are desperately trying to ensure that they get some compensation for the ill that they have experienced as a result of the state’s failure to live up to a proper process. Additionally, it will be extremely costly for the state. As a result of the weakness in the definition proposed by the Government, we will see case after case being dragged through the English courts and then the European courts. In trying to remedy some form of perceived ill, we will create greater damage to those who have suffered enough.

In addition, the process that is under way at the moment risks making a laughing stock of the Government. As we have heard today, there will be arguments over the difference between “do not commit” and innocence, between “conclusively” and “beyond all reasonable doubt”. The lawyers will make a fortune. I plead for a common-sense approach. The compensation arrangements at the moment are not absolutely perfect, but at least we have managed to secure some compensation for those cases that have been quashed as a result of the state’s failure, and this is about the state’s failure to act accordingly.

There are many other cases. Susan May recently passed away, unfortunately, but her case is still being pursued to demonstrate her innocence, and I think that, rather than it being proved in the long run that the evidential base was the problem, it will be demonstrated that police processes were not adhered to and it will be another case that is eventually quashed. I hope that the Criminal Cases Review Commission will posthumously provide some proof that she should never have been taken through the courts, but again, the case has been dragged out over years, demonstrating how difficult it is, even when trying to prove the failure of due process, to secure not just a decision but any compensation. The new process will make it even harder to get compensation, drag the decision-making processes out for even longer and prove to be basically unfair.

I support the Lords amendment, because at least it moves us a little further forward, although I think even it will be open to significant challenge in the courts.

[Mark Durkan]

I rise to support Lords amendment 112 and oppose the Government’s amendment in lieu. The Minister told us that the Government were moving to allay the concerns raised by the use of the word “innocence” and its abuse in the Bill as originally drafted. Of course, many of us argued that the wording used in the original Bill changed all the normal presumptions about innocence under the rule of law and that it was tilting things to say that because someone had not proved their innocence they could remain guilty, even though they had been released on a quashed conviction. We were concerned not just about the word “innocence” but about the fact that the burden of proof would be reloaded for cases subject to review on the basis of new evidence that could lead to a quashed conviction. We were concerned that the question of compensation would be tested by altering the burden of proof so that new evidence had to prove someone’s innocence. The onus was being put on that person and their legal team to show the strength of the evidence.

The Government’s response to the Lords’ fairly reasonable and measured amendment is to say that they have solved the problem of innocence by using the term “did not commit” about the offence. The Minister was asked again and again to tell us the difference. A brand of soup—I cannot remember which—used to be advertised by the slogan, “The difference is in the thickness.” We are being told that there is a big difference and the Minister is emphasising its importance, but he cannot explain, specify, spell out or measure in any way the difference between whether someone can show that the evidence proves that they are innocent of an offence or whether they can show that it proves that they did not commit the offence. Even some of the interventions from the Government Back Benches seemed to rest more on whether there was evidence that an offence had been committed than on whether there was evidence that the person had actually committed the offence.

There are cases, of course, in which we know that gross and horrible offences have been committed, but that is very different from saying that that proves that a person who was charged and convicted of that offence has committed it. At other times, offences that might or might not have been committed are subject to questions and conjecture. We might consider our experiences in this House, as we might be thrown into the spotlight of public judgment about whether or not we did something. If we consider “did not commit” and “innocent” in that context, we might start to tease out some of the differences.

If as MPs we were arrested on the basis of some allegation, the fact that we were not charged and nothing more happened would show that we were innocent, but would other people necessarily say that it proved that no offence had been committed and nothing had happened? Things might be different; there can be a difference between “innocent” and “did not commit”. As the hon. Member for Hayes and Harlington (John McDonnell) said, it is hard to prove a negative. We know from recent events of major publicity and political import in which allegations were made that someone had spoken to and treated police officers in a particular way, leading to consequences and all sorts of sweeping media and public judgments—although thankfully not court judgments—that that person was put in the position of having to prove a negative. They were asked to prove that they did not say what they were meant to have said and that they did not behave in the way that they were meant to have behaved.

We need to think not only about the hard and serious cases when we consider miscarriages of justice in this jurisdiction; some of the questions about the difference between “innocent” and “did not commit” can be asked closer to home about cases that do not necessarily reach the criminal courts. If we are conscious about language and the standards, judgments and measure of such things, it might help us and make us a wee bit more sensitive about how we word things as legislators.

The Lords amendment is designed, I believe, to meet the problem that the Government were seeking to address in the Bill. The Government said that they did not want to create a situation whereby the quashing of a conviction led either to the automatic fact of compensation or to the automatic assumption or expectation of compensation. They felt that some other test or qualification was needed. That was what the Government decided; it might not have been the starting point for some of us who have campaigned on miscarriages of justice cases such as those of the Birmingham Six and the Guildford Four. Long after the latter conviction was overturned, I worked with Gerry Conlon and his mother to try to ensure that there was an apology that fully vindicated them and voiced their innocence, because many people in the system and the media were still trying to hide behind the pretence that it was a technical quashing of the conviction but that the conviction itself was due and proper. For them, the issue is not compensation but the absolute assertion of innocence. That was why offence was taken at the use and abuse of the term “innocence” in the original Bill, but that was not the only issue. The burden of proof was altered and an attempt was made to allow in the system for someone who had been convicted and imprisoned for a long period not to be entitled to compensation, because they could not prove beyond reasonable doubt that they did not commit the offence or their innocence.

Lord Pannick’s amendment accepts the Government's premise that there needs to be a definition and bases that definition on many issues that have been tested in other cases, including, as we have heard from the Minister, the Adams case. Based on the working and practical use of the law, the Lords amendment is wise and considered in its suggestion that a new or newly discovered fact should show conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it. That is not a hard test, as it does not open up things to conjecture. It basically allows courts to do what many appeal courts and more senior courts often have to do in considering the material evidence that would have been in front of a lower court and to make a judgment on that basis.

The Lords amendment would simply allow someone, after their conviction has been quashed, to pursue compensation on the basis that the quality of the new evidence shows that there would not have been a conviction in the first place. By refusing that, the Government are basically seeking to return to a situation in which the courts, the police and the prosecution service could be seen as part of a nexus of pursuing and achieving a miscarriage of justice. The beauty of the Lords amendment is that it would clearly take the lower court out of the frame, because it states that had the lower court known about such evidence, it would never have achieved the conviction.