Anti-social Behaviour, Crime and Policing Bill

Hywel Williams Excerpts

Tuesday 4th February 2014 Commons Chamber

[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.

[Hywel Williams (Arfon) (PC)]

Will the Minister concede that that puts the burden of proof squarely on the defendant, however? They will have to do what is virtually impossible: prove a negative, and perhaps many years after the alleged offence took place.

[Damian Green]

No, I do not accept that because what would trigger the compensation claim would be the new evidence showing they could not have committed the offence. Something has to happen. Some new evidence has to be brought forward, so it is not simply a situation of the case being redefined.

--- Later in debate ---

I find it hard to take seriously anything he said today, because he still cannot explain the difference, and exactly the import of that difference, between what he is offering in his original clause and the amendment in lieu. The reality is that the only real difference—the valid and important difference—is that which is contained in the Lords amendment. That is why the House should agree to Lords amendment 112.

[Hywel Williams]

I wish to add my voice to those seeking to support Lords amendment 112. I am indebted to my right hon. Friend the Member for Dwyfor Meirionnydd (Mr Llwyd) for his guidance and advice on the matter. He would have been here if that were possible.

The hon. Member for Hayes and Harlington (John McDonnell) referred to the long-term damage done to individuals, and indeed to their families, by such miscarriages of justice. In the case of the Cardiff Three, damage was clearly done not only to those individuals and their families, but to an entire community. I believe that what happened was a public harm, because it damaged relations between community groups in Cardiff. We must not underestimate the importance of that case.

The Lords rejected the Government’s original intention, which was to place an expectation that the defendant would have to prove that

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

in order to gain compensation. As I said in an intervention, that would have placed a heavier burden of proof on the individual, as he or she would have been forced to prove their innocence of a crime years or even decades after it took place. The Lords instead passed their amendment 112, which means that a person could be awarded compensation, provided that the evidence now used against them could not possibly result in a conviction at trial. That means that the evidence against a person is so undermined that no conviction could be based on it.

Regrettably, the Government now intend to disagree with the Lords and, in effect, reiterate their original intention by saying that the evidence would need to prove that the defendant “did not commit” the offence. We have already heard the debates about the semantic difference between “did not commit” and “innocent”—I was imagining lawyers dancing on the head of a pin. That would once again place the burden of proof on the defendant. It asks the defendant to do something that is virtually impossible: to prove a negative—that they did not do a certain thing—years after the trial has taken place.

The Minister said that it would not be useful to provide examples of individual cases. The Government’s attempts to change the law covering compensation in cases in which an alleged miscarriage of justice has taken place runs contrary to case law, which cements the current position. Some cases have been suggested to me by my right hon. Friend the Member for Dwyfor Meirionnydd. In R (Mullen) v. the Home Secretary, Lord Bingham successfully argued that a miscarriage of justice can occur where an individual has been wronged by

“a failure of the trial process”.

The burden is not on the defendant to prove that they were innocent. In R (AH) v. the Secretary of State for Justice, the divisional court ruled that a miscarriage of justice occurs where an individual can prove

“beyond reasonable doubt, that no reasonable jury... properly directed as to the law, could convict on the evidence now to be considered.”

It is chilling to think that the cases of the Birmingham Six, the Maguire Seven, the Guildford Four and, as I have mentioned, the Cardiff Three would not have satisfied the new test put forward by the Government. If Lords amendment 112 is overturned, individuals who have already suffered a miscarriage of justice will be further wronged by not being able to access the compensation due to them—compensation meant to represent roughly the amount they would have received in earnings had they not been imprisoned.

I do not believe that the Government have offered an adequate reason for introducing this ill-advised provision. The Secretary of State, by refusing to change the Government’s proposals, is not only refusing to listen to Members of the other place, but ignoring the advice of external organisations, such as Liberty and Justice, that oppose the change.

I urge Members to disagree with the Government and insist on Lords amendment 112 in order to uphold the current position based on case law, which determines that a miscarriage of justice has occurred if it can be shown

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

As the hon. Member for Birmingham, Erdington (Jack Dromey) said, the presumption of innocence is a key principle of the justice system. Defendants should never have to prove their own innocence. There can be no reason why such an unfair burden should be placed on defendants seeking to prove that a miscarriage of justice has taken place. Lords amendment 112 must be upheld.

[Jeremy Corbyn]

I rise to support Opposition Front Benchers. Lords amendment 112 uses the words,

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

I put it to the Minister that that is surely about as good as we are going to get as an effective definition in taking things forward. If we have to take the route of proving that an offence was not committed, then I see all kinds of injustices occurring further down the line. A point was made about Barry George. We all agree that the murder of Jill Dando was disgusting, appalling and revolting, and obviously the person who did it should suffer the consequences of committing it. Barry George was imprisoned and later released. Therefore, the court had decided that he did not commit the offence. Has he now to prove his innocence even though he has been released by a court? That case is very well known, and I suspect that very many others do not get that degree of publicity. Miscarriages of justice happen all the time.

Like my hon. Friend the Member for Hayes and Harlington (John McDonnell), who has had to leave to chair a Public and Commercial Services Union group meeting but will return, I was very involved in the Birmingham and Guildford cases. Indeed, Paul Hill, who was the first person ever arrested under the Prevention of Terrorism Act 1974, was a constituent of mine. I went through the whole business of the campaign, and eventually those people were released and compensation was paid. However, I have to say two things about the compensation. First, there seemed to be a calculation based on the expected income of those people throughout their lives, yet at the time of their arrest, the Guildford Four were not particularly well paid, working as part-time building workers in some cases, and one would not have said that their economic prospects were particularly good. But who knows what would have happened to their economic prospects had that terrible miscarriage of justice not happened?

Secondly, one area of compensation was not effectively taken into account. This was not just about the emotional cost to the wider families—my hon. Friend the Member for Hayes and Harlington is correct that there have been some awful traumas in the families of the Guildford Four, the Birmingham Six and many others—but the financial cost. In mounting a campaign to try to gain the release of a convicted prisoner, particularly when they have been convicted of very serious offences, it is difficult to gain public support and even more difficult to find anybody to help finance it, so in many cases the families paid out a great deal of money themselves.

The step forward that was taken on the release of the Birmingham and Guildford people was the establishment of the Criminal Cases Review Commission, from which we took very interesting evidence last week in the Justice Committee. There are a number of cases that it does not review because it does not think there is enough evidence to do so. When people come back and demand a re-examination, in some cases the CCRC will then review. In the very large number of cases where it does review, it sends those cases back to the Court of Appeal and subsequently the individual is released. On that basis, compensation should be automatic—a given. If someone has been convicted, the case has been reviewed by the Court of Appeal, and they have been released, obviously the Court of Appeal must have had some very good grounds for releasing them. I do not see why they should then have to go through another hoop of trying to get compensation by proving that they did not commit an offence that they have been released for not committing. We are getting into a big problem in this regard.