New Clause 10 — Fees for criminal record certificates etc

Regulation of the Private Rented Sector – in the House of Commons at 12:47 pm on 15th October 2013.

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‘In Part 5 of the Police Act 1997 (criminal record certificates etc), in section 125 (regulations), after subsection (1) there is inserted—

“(1A) In prescribing the amount of a fee that—

(a) is payable in relation to applications under a particular provision of this Part, but

(b) is not payable in relation to applications made by volunteers,

the Secretary of State may take into account not only the costs associated with applications in relation to which the fee is payable but also the costs associated with applications under that provision made by volunteers.”’.—(Damian Green.)

Brought up, and read the First time.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

With this it will be convenient to discuss the following:

Government new clause 28—Court and tribunal fees.

Amendment 184, page 115, line 19, leave out clause 143.

Amendment 95, in clause 143, page 115, line 26, leave out ‘the person was innocent of the offence’ and insert—

‘no reasonable court properly directed as to the law, could convict on the evidence now to be considered.’.

Government amendments 137, 138, 66, 139, 74 and 83.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I will first deal with the Government’s proposals, although I am aware that hon. Members will wish to speak to other amendments. I will deal with those at the end of the debate on the group.

The Government proposals in the group are on the setting of fees for two distinct public services. New clause 10 concerns fees charged by the Disclosure and Barring Service. It is Government policy—I imagine and hope that this is supported by hon. Members on both sides of the House—to encourage volunteering in our communities. To that end, it has long been the case that criminal record checks, where needed, such as in respect of work with children, are provided free of charge to volunteers. The new clause puts on a clear statutory basis the ability of the Home Secretary to take into account the cost of providing criminal record certificates and other services covered by part V of the Police Act 1997 when determining the fees charged for those services.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The Minister is making important points about ensuring that people are able to pay. As I understand it, it is not currently possible to get a basic disclosure within England and Wales—it has to go through Scotland. Will he look at ensuring that, where appropriate, basic applications are available and free?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 1:00 pm, 15th October 2013

I am conscious that at various times there have been difficulties with the practicalities of the system, and I take on board my hon. Friend’s point.

The other services covered by part V of the Police Act 1997 when determining fees charged for services also apply to the new update service that was launched earlier this year. This will enable employers to verify whether existing criminal record certificates for those signed up to the service remain up to date, allowing us to ensure that the overall costs of the service now provided by the disclosure and barring service are fully recovered through fee income, and not subsidised by the taxpayer.

Earlier this year, when the update service was introduced, we made interim arrangements under the Finance (No. 2) Act 1987 to provide the legal gateway for this measure to apply. However, the overall arrangement was complex and not entirely transparent. For that reason, we believe the new clause will benefit volunteers and the people and communities they support.

New clause 28 contains substantive provisions to replace clause 147, which, as we made clear, was a placeholder clause. The new clause provides the Lord Chancellor with a general power to set fees at a level that exceeds the cost of the related services. The services are those provided by the courts in England and Wales, including the Court of Protection, the tribunals for which the Lord Chancellor is responsible and the Office of the Public Guardian. The primary focus of our proposals for using this power will be the courts of England and Wales. The courts play a vital role in our society, providing access to justice so that the public can assert their legal rights. Ensuring that they are properly resourced is essential to maintaining access to justice. This must be delivered when public spending is required to fall—deficit reduction is one of the Government’s key priorities—and the courts and those who use them must make a contribution.

As new clause 28 makes clear, the purpose of enhanced fees is to finance an efficient and effective court system. This change to the way that fees are set will help to ensure that courts are properly resourced to deliver modern, efficient services so that access to justice is protected. The proposed legislation provides a general power; specific fees would be increased through secondary legislation. When a specific fee or fees are set at an enhanced level for the first time, the order will be subject to the affirmative resolution procedure—there will be full debate in both Houses. Any subsequent changes to those fees will be subject to the negative procedure.

We will shortly be consulting on proposals to achieve full cost recovery, less remissions, in the civil and family courts. However, even on this basis the running of the court system in England and Wales costs more than £1 billion a year, so we need to go further in reducing the burden on taxpayers. We believe it is fair and proportionate that those who use the courts and can afford to do so should make a greater contribution to their overall funding. That is why we are bringing forward this provision to allow fees to be set above cost in some circumstances.

Let me assure the House that we will not be using the power to set excessively high fees. In setting fees, the Lord Chancellor must have regard to the principle that access to the courts must not be denied. The new clause requires him to have regard to the overall financial position of the courts and tribunals, and the international competitiveness of the legal services market. We are not bringing forward specific plans for charging enhanced fees at this stage. We want to take some time to ensure that we get the measures right. As I said, we will consult widely on the proposals and look carefully at how any proposed court fees might compare with the overall cost of litigation, the value of the issues at stake and the fees charged by our international competitors. Following the consultation there will, as I have indicated, be full parliamentary scrutiny of any enhanced fees that we decide to introduce.

Amendments 184 and 95 relate to the tests for eligibility for compensation following a miscarriage of justice. I propose that the House hears from the hon. Members who tabled them before I respond.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I, with my hon. Friend Mark Durkan, tabled amendment 95. Does the Minister not recognise that he is proposing a dangerous step forward that would actually reduce the chances of overturning a miscarriage of justice case? Would the Guildford Four or the Birmingham Six have been declared innocent under his proposals?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

As I said, I think it would be sensible, for the purposes of the debate and the convenience of the House, if the hon. Gentleman makes his case and I then respond to it at the end of the debate. I think that is better than pre-responding to the speech I suspect he will make. [Interruption.] I am happy to make the same speech twice, but you, Mr Speaker, might feel that that was out of order. If the hon. Gentleman wants a taste of what I am going to say, I do not agree with him, but I will wait to hear his fuller analysis to see if he can convince me in the course of the debate.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

Order. I note the spirit in which the Minister of State made his remarks, but Jeremy Corbyn has said nothing disorderly. He might not have said as much as he has to say or as the Minister would like to hear, and we wait with bated breath to see whether the hon. Gentleman will spring from his seat to seek to catch my eye, but his behaviour has been orderly and respectful, as always.

Photo of Jack Dromey Jack Dromey Shadow Minister (Home Affairs)

I rise to speak on two matters; first, briefly, on enhanced fees. We are not opposed to the principle of what is being proposed, but it is clear from what the Minister has said that this is about more than full cost recovery, the kind for which we argued yesterday in respect of firearms. This is a revenue-raising measure. We will therefore scrutinise carefully any orders brought forward under the proposed legislation to ensure that any charges are reasonable, and that the interests of the administration of justice are best served.

Amendment 95 relates to miscarriages of justice. I am proud to serve the city of Birmingham. In 1974, the city saw the most appalling terrorist outrage when, as a consequence of bombings by the Provisional IRA, 21 innocent citizens died. Six innocent people were then convicted of that terrorist outrage. I should make it clear that I have been a lifelong opponent of violence by the Provisional IRA. My mother and father were both Irish. I was also on the executive of the National Council for Civil Liberties for many years, and served as its chairman. In that period, we campaigned against terrorist violence and for justice at a time when it was sometimes difficult to stick one’s head up and say that what had happened to the Birmingham Six and the Guildford Four was unacceptable. Sixteen years after the Birmingham Six were sent to prison, they were released and found to have been wrongly convicted.

On behalf of the Opposition, I warmly welcome the fact that my hon. Friends the Members for Foyle (Mark Durkan) and for Islington North (Jeremy Corbyn) are bringing this important issue to the Floor of the House. We are rightly proud of our judicial system, but we know that it is not perfect. The Birmingham Six and the Guildford Four are but two examples of miscarriages of justice that highlight in extremis the consequences of getting it wrong; taking away years of a person’s life and damaging their reputation, their friends, family and colleagues. It is therefore entirely right that when such a miscarriage of justice occurs, the innocent people who have suffered are entitled to compensation.

At the heart of our legal system lies the principle of innocent until proved guilty, and rightly so. However, Government changes to redefine the compensation test, limiting it to

“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence” seem to fly in the face of this age-old principle. Under the Government’s new narrowed compensation tests, none of the Birmingham Six or Guildford Four would have been entitled to payments. Billy Power, one of the six men wrongly convicted in the 1970s for the Birmingham pub bombings, has warned that the changes would mean that

“the standard presumption of innocence would be abolished”.

And he is not alone. A report from the Westminster joint human rights commission 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. We recommend that clause 143 be deleted from the Bill because it is on its face incompatible with the Convention.”

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

As the hon. Gentleman will hear if I have a chance to say a word, I am very supportive of what he is arguing for and of the amendment that his hon. Friends have tabled. With respect, though, I would like to correct something that he said. The opinion that he just quoted was that of the Joint Committee on Human Rights—not the Westminster convention, or whatever he called it—which is making exactly the argument that he is putting to the House.

Photo of Jack Dromey Jack Dromey Shadow Minister (Home Affairs)

I am grateful to the right hon. Gentleman for his intervention; he is of course right.

We support a rigorous and fair justice system, but it must ensure that where a serious miscarriage of justice has happened, innocent people receive fair compensation for all that they have suffered, which, in the more extreme cases, can involve years of their lives. If a miscarriage of justice has taken place, it is the justice system’s mistake, and it should be its job to put it right, not to make it harder for innocent people to do so. If—God forbid!—we ever saw a repeat of what happened with the Birmingham bombings and the subsequent convictions, it would be absolutely unthinkable that those people would not be entitled to compensation.

I very much hope that the Minister will respond constructively to the amendment and our representations. We intend to support the amendment in the other place, where we believe that further detailed scrutiny should take place, because the Government have got it wrong and we must put that wrong right.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

It is a pleasure to speak in this debate and to follow the opening comments.

I thoroughly support new clause 10, because it is right that we recognise volunteers. Too often, people have had to pay far too much to go through the processes necessary to volunteer, as I know from my own voluntary work, although that was more of a problem when people needed separate certificates for everything they did. I am glad that we have made some progress at least.

There is an issue, however, about the availability of the right level of disclosure for criminal record certificates. I thought I knew this area reasonably well, but I did not realise until recently that it was not possible to get a basic certificate—there are three levels: basic, standard and enhanced—listing unspent convictions in England and Wales; the only body that does it is Disclosure Scotland. While getting the pricing correct, therefore, we must also ensure availability. It seems perverse that only under Scots law can somebody get what most employers ought to have access to. Most employers do not realise that they should have the basic, rather than standard or enhanced certificate. I hope that Ministers will consider that point and ensure that while providing the right costings, we also get that right, and that the Government implement the relevant provisions in the Rehabilitation of Offenders Act 1974.

On new clause 28, the Minister made a strong case for having some fees. I think we would all agree that if a Russian oligarch makes great use of our courts, they should make some contribution. None of us would suggest that their having to pay £1,000 or so would inhibit their ability to get justice. Perhaps the cost of using the courts should be a fraction of the fees going to the lawyers; that might be a safe way of ensuring that we make our fair share. That is not the route chosen, however, although it is quite tempting, given how large the legal fees are in many of these cases. It is not just Russian oligarchs, of course; it is anybody with a very big transaction. It seems right that they should contribute to the costs of our fantastic court system.

We need to ensure, however, that people not in a position to pay are not hit. It should still be possible for people without money to access the courts, and in that, the fees system could help, because by taking more money from those who have lots of it, we could subsidise those who do not. I note that there is broad support for the idea that any money made should be reinvested in improving our court system and ensuring that it works well. Broadly, therefore, I am pleased to see the new clause.

Clause 143 has been discussed passionately by the shadow Minister and Jeremy Corbyn. I share their huge concern about effectively requiring somebody to demonstrate their innocence, which in very many cases would be extremely hard to prove to the level required. It is not hard to think of cases where it would have been problematic; the shadow Minister described some of them, and I will not detain the House with a long list, but people have written to me with examples.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

It is nice to be encouraged by the Whips to speak at greater length, but I am sure we have enough to debate and I do not want to take time from the important debates coming up.

On the concerns about clause 143, the hon. Member for Islington North has, of course, tabled his amendment, but the Joint Committee on Human Rights has also tabled an amendment that would get rid of the clause completely. I am not a lawyer, but my assessment is that the JCHR approach is probably a cleaner one, but both amendments aim to achieve exactly the same thing. I agree with the shadow Minister that we should flag this up as a big issue, but leave it to the other place to find the right answer. By then, I hope that the Government will have reflected on it and accepted the principle that it is incredibly hard for anybody absolutely to prove their innocence. That is a really tough threshold. I hope that the Minister will reflect on that and that we can strike a better balance in the other place.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I will be brief; because of the odd timetable we have for the Bill, there is not much time to debate any of it. My remarks are concerned solely with amendment 95, which stands in my name and that of my hon. Friend Mark Durkan, and for which, as my hon. Friend Jack Dromey explained, there is strong support.

Clause 143 will fundamentally overturn the huge changes made after the release of the Birmingham Six and the Guildford Four. For many years, along with Chris Mullin and many others, I was one of those who, from this position in the House, raised questions about the Birmingham Six and the Guildford Four, and I could paper the walls of my house with the letters of abuse we received for taking up their cases. None of us who took up those miscarriages of justice was ever in favour of the bombing and killing of civilians in any circumstances; we were, however, in favour of justice.

The first person arrested under the Prevention of Terrorism (Temporary Provisions) Act 1974 was Paul Hill, one of the Guildford Four, who had been a constituent of my constituency before I was elected, but was in prison when I was elected. Meeting him and the others in prison, I was struck by the sheer hopelessness of being locked up for an offence they did not commit, when every newspaper and commentator in the country said they were guilty and when their family members were abused in the street and vilified because they had a son, nephew or cousin in prison for an offence they did not commit. It made that campaign very difficult, but some very brave people stood up, and eventually those happy days when they were finally released brought about a fundamental change in the whole narrative of justice in this country.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I congratulate the hon. Gentleman on his work on this issue over many years; it is a great tribute to him that he took it seriously. Does he agree that a fundamental principle underlies this point, which is that no matter what somebody has been accused of, however heinous it might be, they are still entitled to due process and due legal protections? That is an essential principle from which we should not vary, whether a person be accused of terrorist activities, sex crimes or anything else. Due process is important, because errors are made.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

The hon. Gentleman is absolutely correct. However heinous the crime, however vile the accusation against an individual, unless they are treated as innocent until proven guilty, we undermine everything we believe in as a democratic society.

The big change that came after the release of the Birmingham Six and the Guildford Four—and Judith Ward for that matter—was the Criminal Cases Review Commission, which immediately started looking at 600 miscarriage of justice cases that had not received the sort of publicity that we had managed to engender in the three cases I just mentioned.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (International Development)

I wish to refer to one of those cases. The Cardiff Three, who were accused of a non-terrorism crime, suffered the same injustice and vilification, but eventually got some sort of justice.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Absolutely. I recall that campaign very well. Although I was not centrally involved in it, I certainly supported it.

The question really goes back to the Minister. I intervened on him during his opening remarks to give him a chance—a double chance; not double jeopardy, but a double chance—to provide us with good reasons why he is introducing a provision that we, along with Liberty and many others, believe will fundamentally undermine much of what has been achieved through the Criminal Cases Review Commission and by the ability to overturn miscarriages of justice.

Justice can go wrong. The media can get it wrong. There can be a campaign of vilification that gets it wrong. We should not be too holier than thou in this country as we already have a considerable number of people held indefinitely under immigration law, and we have anti-terror laws that I believe are highly questionable in many ways when it comes to justice. I hope that the Minister will explain in his reply exactly how a serious campaign on a miscarriage of justice case would be dealt with in the future and how many more people could indeed be locked up for a long period for offences that they did not commit and could not have committed.

If amendment 95 is not accepted—I support the suggestion of my hon. Friend the Member for Birmingham, Erdington that the whole of clause 143 be deleted—I hope that the House of Lords will look at the provisions in forensic detail. Many of those who did such incredible work, including Baroness Helena Kennedy, in representing these causes and cases over many years, sit in the other place and I hope they will ensure that this legislation is fundamentally changed so that we recognise that mistakes can happen, that terrible injustices can take place and that unless we provide the opportunity and ability to remedy them, they will happen again and again and again. That is very dangerous in any democratic society.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I apologise to you, Mr Speaker, to the Minister and to colleagues because I had to slip out briefly at the beginning of this debate, albeit for what I hope are appropriate reasons. I had to meet a press deadline to pay tribute to one of our party members—not a parliamentarian, but a man called Stan Hardy who had been a great campaigner on these sorts of issues. He died last Thursday at the ripe old age of 93. Not just Liberal Democrats or liberals but Labour and Conservative colleagues in London and beyond recognised Stan as a doughty campaigner for civil liberties as well as for the rights of the under-privileged.

It is always a pleasure to follow Jeremy Corbyn on these sorts of issues, and I join my hon. Friend Dr Huppert in paying tribute to his doughty campaigning throughout all the time he and I have been together in the place—now more than 30 years in both our cases. The hon. Gentleman’s amendment, supported by his hon. Friends, is designed to deal with a wrong in this Bill that I hope we can remedy.

There is a difference between amendment 95, tabled by the hon. Member for Islington North, and amendment 184, tabled by Dr Francis and me. We argue for our amendment in our own right, but also on behalf of the Joint Committee on Human Rights. Amendment 95 would amend clause 143, taking out from line 26 the words

“the person was innocent of the offence” and inserting the words

“no reasonable court properly directed as to the law, could convict on the evidence now to be considered.”

The Joint Committee’s collective view was that we would do better to remove clause 143 as a whole—exactly the issue for which Jack Dromey argued. I have been here long enough to remember and to have supported numerous campaigns to deal with miscarriages of justice, many of them very unpopular for the reasons we have all identified. Having looked at the issue again, I honestly believe that the removal of the clause would be the better way to deal with the problem. There are technical problems with amendment 95, so I strongly commend to the Minister the amendment to remove clause 143.

Finally, I shall not press the Joint Committee’s amendment to a vote, but we feel strongly about this issue as a Committee. I am sure the Minister knows that we will listen respectfully to what he says, but I hope he can be helpful and confirm that the principle of the Government’s proposal—that the provision should apply

“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent”— will be changed because that is not the test that should be applied to deal with miscarriages of justice.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I, too, rise to speak to amendment 95, to which my name is attached, along with that of Jeremy Corbyn.

As Simon Hughesand others have said, the history of serious cases of miscarriages of justice should bear very heavily indeed on all Members. I include in that the cases that were fought, promoted and championed against very difficult headwinds here in Parliament by Members of all parties. I recall Conservative Members like the late John Biggs-Davison and others championing those cases alongside Labour and Liberal MPs—but little thanks did they get for it from sections of the media and others.

My own predecessors and party colleagues in Parliament fought on those issues at that time. I remember working in John Hume’s office writing all sorts of letters to the Home Office. Of course, we were told that new facts and new evidence did not qualify as new facts and new evidence. Perhaps that issue still applies to clause 143. Even if amendment 95 were accepted, the question of what counts as a

“new or newly discovered fact” still arises, although I hope that the wording of the amendment, which would provide that

“no reasonable court properly directed as to the law, could convict on the evidence now to be considered”, would help. There were historical arguments about whether new evidence was indeed a new fact or a material consideration, and I would not want to legislate to produce more circular arguments or obfuscations like that for the future.

Clause 143 is pernicious. It seeks completely to reload the basic, long-standing presumption of innocence until proven guilty. It basically provides qualification of the notion of a miscarriage of justice, suggesting that when someone has suffered what most people would call a miscarriage of justice and when their conviction has, on subsequent judicial appraisal of relevant evidence, been overturned, they should still not be able to proclaim their innocence. There is an insinuation that if they were previously convicted, they are innocent and entitled to compensation as innocent only where they can prove that they are innocent “beyond reasonable doubt”.

For the people affected, many of their convictions will have taken place many years previously and they will be in no position to marshal all the evidence that could necessarily prove their innocence beyond what someone would call a reasonable doubt. Nobody has to meet that criterion at their proper and due initial trial, so why should anybody have to do that to receive compensation after a conviction has been overturned? Compensation is not the only issue here because it is not the monetary value that motivates the fundamental objections to this proposal.

Before I became a Member in 2005, I worked on the cases of the Guildford Four and the Maguire Seven when they still needed and wanted a full and proper proclamation of their innocence, not least because many sections of the media and others were retelling the slur that these people had somehow secured just a technical acquittal. Their conviction was quashed, but the insinuation remained that they were not really innocent. That problem arose from issues surrounding compensation and other factors.

I recall being asked by Gerry Conlon, a friend of mine and one of the Guildford Four, if I could get a direct and clear statement of apology and a proclamation of the innocence not just of himself but of his late father, Giuseppe Conlon. I was also asked the same by Sarah Conlon, Gerry’s mother and Giuseppe’s widow. It was plain that Gerry Conlon wanted that clear proclamation of their innocence for his mother, that his mother wanted it for Gerry, and, of course, that they both wanted it for Giuseppe.

It is hugely important for people to be able to engage in the proper legal process in order to have their innocence properly affirmed. They should not have to engage in all sorts of ulterior processes to secure, for instance, declarations in the House of Commons or in the precincts of Parliament, which is what happened at the time to which I have referred. We must recognise that miscarriages of justice have had a fundamental impact not just on the people whose lives have been marred and blighted by years of jail and the ignominy that they and their families have suffered, but on the wider community—and not just in the context of British-Irish relations and all those historic difficulties.

It is mean-minded of the Government to use the Bill to try to qualify the definition of whether people have been victims of miscarriages of justice, and to impose an undue burden on them to prove their innocence “beyond reasonable doubt”. Those words were chosen very deliberately. How can any of us prove our innocence of anything beyond reasonable doubt? Many of us might be accused of saying things, insinuating things, meaning things, or doing things relating to our expenses or all sorts of other things, but it would be enormously difficult for us then to prove beyond reasonable doubt that we had not done those things, particularly if we had been subject to a lot of media reportage, profiling and distorted coverage. It is beyond me to imagine why the Government chose to use such wording.

In amendment 95, my hon. Friend the Member for Islington North and I seek to modify the damage done by clause 143, proposing that the words

“the person was innocent of the offence” after the words

“if and only if the new or newly discovered fact shows beyond reasonable doubt that” should be replaced by the words

“no reasonable court properly directed as to the law, could convict on the evidence now to be considered”.

I think that that is an important and measured qualification.

I also agree with what was said by the right hon. Member for Bermondsey and Old Southwark on behalf of the Joint Committee. In many respects, clause 143 as a whole is the problem. I certainly am not minded to become involved in a contest relating to whether the House should divide on whether to keep the whole clause or on whether to amend it in the way suggested by amendment 95. On the basis of what I have heard from Liberal Democrat Members, as well as the important statements that we have heard from the Opposition Front Bench, I will say that—although my party has no Members in the House of Lords, and will have none until it has become a reformed and democratic Chamber—if there are other worthy heads there that are able to concentrate on this clause in its fullest and important sense, I shall give them every encouragement to do so.

We cannot treat this issue lightly. The Government may say, “It is all about the compensation culture: it is simply about cutting costs.” They may say that they do not want compensation to be automatically provided in cases with which people might not be comfortable because they might find the recipient unattractive, and because it might relate to a crime about which there was a great deal of deep and understandable public feeling. However, none of those considerations should allow us to indulge a clause that would fundamentally tilt the presumption of innocence—that would tilt the balance away from someone’s guilt having to be proved beyond reasonable doubt. People who have been convicted and deemed guilty may be able to challenge that decision subsequently, but, even if they are released, they may in a sense be unable to escape from the original conviction.

Inherent in the Government’s proposal is the notion that the fact that someone is not guilty does not necessarily mean that that person is innocent, which is a very dangerous wedge to start inserting in public assumptions and perceptions. However, it is what we as legislators are being asked to do, and the hon. Member for Islington North and I tabled amendment 95 so that we could register our view properly today. We hope that it will be registered further, in terms such as those that we have already heard from the Opposition Front Bench and, indeed, from some on the Government Benches.

I hope that the Minister is sensitive to some of the issues that have been raised—not just in relation to cases that have already happened, but in relation to those that may happen in the future—and to the deep concern that is felt about the possibility that the “tilting” is part of some other ulterior agenda. This is certainly not something that we can allow to pass lightly, and I shall listen very carefully to what the Minister says.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (International Development) 1:30 pm, 15th October 2013

I will support amendment 184, or, failing that, amendment 95.

Clause 143 in its present form marks a significant and hugely detrimental shift in the law which would make it far more difficult for individuals to gain compensation for wrongful conviction and imprisonment. Non-governmental organisations concerned with human rights, including the Committee on the Administration of Justice, as well as highly respected organisations such as Justice and Liberty, have expressed major anxieties about the clause. As Mark Durkan explained very eloquently, an individual who applies for compensation for a miscarriage of justice must currently demonstrate that a court could not have established beyond reasonable doubt that he or she was guilty of the offence. Clause 143, however, shifts the burden of proof to the individual, and compels that individual to prove that he or she is innocent of the offence. A miscarriage of justice would henceforth be proved to have taken place only if newly discovered facts showed beyond reasonable doubt that that person was innocent.

As Justice has pointed out, since 2006 section 133 of the Criminal Justice Act 1988 has provided the only avenue for individuals to obtain financial redress after miscarriages of justice have occurred. It is chilling to think that, had the proposed change in the law been in place at the time, none of the Birmingham Six, the Guildford Four, the Maguire Seven or the Cardiff Three—I have some interest in that case, and indeed referred to it earlier—would have satisfied the innocence test.

Those infamous cases, of course, paved the way for the establishment of the Criminal Cases Review Commission. The individuals involved won compensation because it was proved that the evidence that had been brought against them was flawed, and that a jury could not have found them guilty had the case been retried. As was made clear by the hon. Member for Foyle, the justice system of England and Wales is unlike the Scottish system in that a case cannot be found to be “not proven”, although there have been arguments about that position.

In the notorious cases that I have just listed, the rule of thumb for the awarding of compensation was always that the individuals would receive the amount that they would have earned had they been working during the time when they were wrongfully imprisoned. The purpose of that was to ensure that they would not be impoverished when they were released. It would be wicked indeed to deny individuals that compensation when the justice system has gone wrong.

Under the current law, it is already exceptionally difficult to persuade the criminal Court of Appeal to review new evidence. For cases to qualify, the Criminal Cases Review Commission is required to apply section 13(1) of the Criminal Appeal Act 1995, which provides that individuals must satisfy a “real possibility test”. Arguably, both the Criminal Cases Review Court and the Court of Appeal adopt an excessively strict interpretation of this test. They restrict reviews to new evidence that was not available at the time of the trial or appeal, which means in practice that evidence that was available at the time of the trial or appeal cannot be considered, even in cases in which it was suppressed by the police. Given how difficult it is to get cases referred to the Court of Appeal under both the “real possibility test” and the need for fresh evidence, it is harsh indeed that the Government are attempting further to restrict people’s ability to gain compensation. Innocence is far too high a test and would be virtually impossible to prove after many years, which is when such cases are usually heard.

If this matter is not pressed to a successful Division this afternoon, I sincerely hope that Members in the other place will apply the most stringent attention to the clause. My noble Friend Lord Wigley will certainly do so.

Photo of Emily Thornberry Emily Thornberry Shadow Attorney General

I am grateful to be called, Mr Speaker. Thank you for letting me speak in the debate. I appreciate that my role as a shadow law Minister means that it is an indulgence to allow me to speak. I appreciate it.

I have been in the House for eight years and I thought that I was unshockable, but the way in which the Government are seeking to amend section 133 of the Criminal Justice Act 1988 to redefine a miscarriage of justice is truly shocking. They wish to change it so that, if and only if newly discovered facts show beyond reasonable doubt that the person is innocent, there has been a miscarriage of justice. Nothing less than that will do. Only in those circumstances can someone be given compensation.

I am sure that the Minister will have noted, as anyone else watching the debate will have done, that no one has yet spoken in favour of clause 143, not even the Minister himself yet. If the matter is not dealt with this afternoon, I hope that there will be the opportunity to deal with it in another place. We need to marshal our forces, because the essence of our liberal society is threatened.

The Government’s arguments for introducing an innocence test—there are many arguments; I want to concentrate on the Government’s justification—are, first, that it is needed for the sake of clarity; and, secondly, that it will save money. Neither of those arguments is remotely convincing. Let me turn to the first, about clarity.

The law at the moment is perfectly clear. Three recent authoritative judgments have rejected the innocence test as an affront to the presumption of innocence. The Supreme Court did so in the case of Adams in 2011, in which Lady Hale said:

“a person is only guilty if the state can prove his guilt beyond reasonable doubt...He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now.”

That was reiterated in the High Court in the case of Ali earlier this year. There was an attempt to widen the definition, but that attempt was well and truly quashed by the High Court. This summer, moreover, the European Court of Human Rights, in the case of Allen v. the UK, made it perfectly clear that any legislation that calls into question the innocence of an acquitted person would be a breach of article 6(2) of the European convention on human rights on the presumption of innocence.

Therefore, the law is clear. That law has been reiterated by our own Joint Committee on Human Rights, which has been able to assert that

“it is now clear beyond doubt” that the proposed new test in clause 143 is incompatible with the right to be presumed innocent in article 6(2). Therefore, rather than clarifying the law, it seems that the Government are having a pitched battle with the settled, established law.

The second argument is about saving money. The Bill’s own impact assessment reveals the expected savings to be negligible. According to that MOJ assessment—the Minister looks puzzled; it is on page 4—the effect of the clause will be to reduce by two per annum the number of judicial reviews of Secretary of State decisions, which it estimates will save around £100,000 per annum. Therefore, for the sake of saving £100,000 per annum, we will be trading in the centuries-old principle of the presumption of innocence. The courts have rejected an innocence test not out of some quibbling legalistic technicality. They have rejected it because it is a cornerstone of a fair justice system. We have a fair justice system and a free society where it is for the state to prove guilt, not for the individual to prove innocence.

The reason for that is obvious. Proving a negative is very difficult and the burden of proof it would place on the individual is extremely onerous. It is for the state with all its resources to make the case of a person’s guilt. The presumption of innocence applies before an acquittal. As Lord Phillips said in the Adams case, any test that requires innocence

“will deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude from entitlement to compensation those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation”.

It is unfair and unreasonable to demand that, after years of being wrongfully imprisoned, an acquitted person should produce some evidential rabbit out of a hat that proves beyond doubt their innocence. They should be able to seek redress for the years of their lives that have been wasted and the years in which they have been the victim of abuse of state power. It is wrong for them to be expected to come out of prison after 16 years, turn into some sort of Inspector Clouseau and find some nugget that will prove beyond doubt that they are innocent. In most cases, that will be a technical impossibility, given the amount of time that will have elapsed since their imprisonment. That means that it will often be the most deserving and the longest suffering who are denied compensation. The point has already been made that the Birmingham Six would not have been able to get justice and compensation under the test that the Government are proposing.

This proposed change is wrong and we need to ensure, either in this place or in the other place, that it does not pass into law. There seems to be general agreement on both sides of the House among those who are against the change that another place may be the best place to deal with it. We wish Members in another place the best of luck.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 1:45 pm, 15th October 2013

This has been a serious debate, appropriately, because these are serious issues. Having listened carefully to the views of Members on both sides of the House, I believe that there are some genuine misunderstandings about what is proposed and what its effect will be. I will seek to deal with those as briefly as I can. It is a complex issue.

As we have heard, amendment 95 seeks to maintain the current definition of a “miscarriage of justice” derived from case law, which is therefore subject to ongoing litigation. Amendment 184 goes further and would prevent us from creating a statutory definition of a “miscarriage of justice” at all, leaving the definition subject to the shifting view of the courts. Over the years, the courts have provided complicated definitions of a miscarriage of justice, which are often confusing to a lay person and are by definition subject to change over time. In this instance, it is unlikely that an applicant for compensation would know what

“properly directed as to the law” means in a particular case. That would have disadvantages for applicants, who will find it difficult to know whether they have a valid claim, or to understand the Secretary of State’s decision on their case.

Photo of Emily Thornberry Emily Thornberry Shadow Attorney General

Does the right hon. Gentleman agree that, although there has been a challenge in respect of the case of Adams in the Supreme Court, the position has not moved and the law on the definition of miscarriage of justice has been settled since 2011?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I will come to the Adams case in a moment, if the hon. Lady will be patient.

Many disappointed applicants seek judicial review of the Secretary of State’s decision, because they do not fully understand its basis or because the case law is unclear. In practice, very few such claims succeed, and they place a significant burden on the applicant involved and on the taxpayers who have to fund them. Therefore, the purpose of clause 143 is to restore the law to the pre-2011 position and to make the definition of a miscarriage of justice more consistent, clearer and easier for the public and potential applicants to understand. That is fairer than using an obscure and confusing definition, or continuing to work, as we have to now, with a definition that is subject to unpredictable change. We are firmly of the view that the provision is compatible with our international obligations and the convention rights. I am conscious that we are in discussions with the Joint Committee about that and that we hold different views on the matter.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

Although this issue is being dealt with very carefully, there is clearly a difference of view, and Emily Thornberry made the case for the legal justification. Rather than just have a battle at the other end of the building and a lottery of an outcome, will my right hon. Friend undertake to facilitate a meeting of all those interested in both Houses with members of the relevant Committees so that we can hear evidence and try to do the job properly, and see whether the Government have adopted the right position or we need to do something else? I would far rather we got it right and were really clear and all signed up than we had a maverick outcome that satisfied very few or nobody.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I am happy to continue to engage in the discussions that the Departments have been having with the Joint Committee or anyone else, but I regret to say that I am not sure that having a meeting at which a definitive view could be arrived at would be possible, as that would be subcontracting the right of Parliament to be that Chamber—that is the purpose of this House and the other place, and I do not think it is constitutionally right to try to subcontract that to a meeting of experts.

The nub of Members’ complaints about clause 143 is that it is in some way incompatible with the presumption of innocence—I do not think I am traducing hon. Members in saying that—and that is the issue we need to address. Of course the Government recognise the fundamental constitutional importance of the presumption of innocence and we would not introduce legislation that cuts across that. We consider that article 14.6 of the International Covenant on Civil and Political Rights, to which section 133 of the Criminal Justice Act 1988 gives effect, provides only for compensation to be paid to those persons whose convictions have been overturned because a new fact shows that they did not commit the offence. In the Government’s view, that is the proper definition of a miscarriage of justice. Compensation should not be payable where the basis for the conviction being overturned does not demonstrate the applicant’s innocence.

Emily Thornberry brought up the European Court of Human Rights. We are aware of its decision on this issue and we have written in some detail to the Joint Committee on Human Rights about it. However, we continue to consider that this provision would not interfere with a person’s fundamental right to be presumed innocent until proven guilty. We take firm support for this view from the Supreme Court in the Adams case, which held unanimously that the presumption of innocence is not infringed by the current arrangements for compensating a miscarriage of justice. In our view, the proposed change does not alter that analysis. As the European Court acknowledged, more than an acquittal is required to establish that there has been a miscarriage of justice. Through clause 143, we are determining where that line should be drawn.

Under clause 143, there is no requirement for a person applying for compensation for a miscarriage of justice to “prove” their innocence. What is determinative is the fact on which the conviction was overturned. So, for example, if a person’s conviction is overturned because DNA evidence comes to light showing they could not have committed the offence, it is only right that they should be compensated. Following the coming into force of clause 143, they will, as now, be eligible for compensation.

The proposed new test for determining eligibility for compensation does not require the applicant to demonstrate his or her innocence; it focuses on the new fact. When the Grand Chamber of the European Court of Human Rights recently ruled in the case of Allen that the presumption of innocence is engaged when deciding whether to pay compensation for a miscarriage of justice, the Court made it clear that states were entitled to conclude that more than an acquittal was required. This clause will enable us to say, for the first time in statute, what beyond an acquittal is necessary for there to have been a miscarriage of justice. It introduces for the first time some certainty in the process.

I should say in response to a point made by Jeremy Corbyn that the clause will have no impact at all on the very valuable work being done every day by the Criminal Cases Review Commission, and nor will it change the basis on which a conviction is overturned.

Photo of Emily Thornberry Emily Thornberry Shadow Attorney General

I hope the right hon. Gentleman recognises that the wording of amendment 95 reiterates the wording in the settled case law I have been telling him about.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

Yes, indeed, and I have addressed directly the cases the hon. Lady raised.

We are returning the law to where it was in 2008 under the previous Government, where following the decision of the House of Lords in Mullen, compensation was held to be payable only where a person could be shown not to have committed, or to have been demonstrably innocent of, the offence for which he was convicted.

As has been pointed out by the Supreme Court in Adams, it is difficult to glean exactly what the framers of the ICCPR intended on this point from the papers now available, and nor is there international consensus on what the ICCPR requires in this regard. Signatories to the ICCPR have some latitude in determining the requirements of article 14.6. For example. New Zealand and Canada restrict the payment of compensation for a miscarriage of justice to cases where the applicant was innocent. Further, while the Supreme Court in Adams ultimately held that eligibility for compensation was not limited to cases of innocence, four members of the Supreme Court, including the current Lord Chief Justice, considered that compensation should be payable only in cases of innocence. We are therefore confident that what we are doing achieves the aim of creating a more readily comprehensible test which meets the Government’s policy objectives, while also complying with our international obligations.

We recognise the fundamental constitutional importance of the presumption of innocence, and there may simply be a disagreement in this Chamber as to whether we are breaching it, but I can assure the House that there is no intention of doing so, and I am firmly of the belief that clause 143 does not do that. All it does is require compensation to be paid to those persons whose convictions have been overturned because a new fact shows that they did not in fact commit the offence. This, in the Government’s view, is the proper definition to be given to a miscarriage of justice

I hope I have cleared up what I think are genuine misunderstandings about the effect of clause 143, and I urge the Members concerned to withdraw their amendments.

Question put and agreed to.

New Clause 10 accordingly read a Second time, and added to the Bill.