Anti-social Behaviour, Crime and Policing Bill

Simon Hughes Excerpts

Tuesday 15th October 2013 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

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.

[Jack Dromey]

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.

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[Jeremy Corbyn]

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.

[Simon Hughes]

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 the hon. Member for Islington North (Jeremy Corbyn) on these sorts of issues, and I join my hon. Friend the Member for Cambridge (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 the hon. Member for Aberavon (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 the hon. Member for Birmingham, Erdington (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.

[Mark Durkan (Foyle) (SDLP)]

I, too, rise to speak to amendment 95, to which my name is attached, along with that of the hon. Member for Islington North (Jeremy Corbyn).

As the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)and 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.

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[Damian Green]

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.

[Simon Hughes]

Although this issue is being dealt with very carefully, there is clearly a difference of view, and the hon. Member for Islington South and Finsbury (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.

[Damian Green]

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.

The hon. Member for Islington South and Finsbury (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 the hon. Member for Islington North (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.

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[Ann Coffey (Stockport) (Lab)]

I want to say a few words on new clause 34. I thank the hon. Member for Monmouth (David T. C. Davies) for giving me his views on it, but I think there might have been a misunderstanding.

The new clause would change the law to make the use of racist or other abusive language in a dwelling house an offence when it was directed at a policeman. I was recently contacted by a serving police officer from my constituency who was present when a colleague from the Greater Manchester police was called a “nigger” in a private house. Under section 4A of the Public Order Act 1986, no offence is committed if the “harassment, alarm or distress” takes place inside a dwelling house—that is, somebody’s house or flat. I was surprised by that because, like many people, I was under the impression that racist abuse was an offence wherever it was committed. However, this is not the case. I was shocked to hear that somebody could not be charged with the offence because it took place in a dwelling against a police officer pursuing his duty.

My amendment would make it an offence to use racist or other abusive language against a police constable who was present in a dwelling in the execution of his duty. The police officer from my constituency described attending a property where two men were aggressively arguing. One was very drunk and called one of the police officers a nigger. The officer described seeing her colleague abused and she told me, “I was quite horrified he had to endure this kind of abuse. I felt very frustrated and helpless that we could not charge the offender with any offence.” I am sure that this is by no means an isolated case and I suspect that other professionals such as social workers and health visitors have also been subject to racist abuse when visiting a person at their home address. It does not seem right to me or, I suspect, to the public that if the police officer had been called a nigger in the street, an offence would have been committed, but none was committed because it happened inside a house. I hope the Minister will feel able to consider the amendment that I propose.

[Simon Hughes]

I shall be very brief as we are short of time, and I know that my hon. Friend the Member for Cambridge (Dr Huppert) also hopes to catch your eye, Madam Deputy Speaker.

I draw the attention of the House and those watching our proceedings to amendments 178 to 181 and 183. I do that not just in my own name, but on behalf of the Joint Committee on Human Rights, which examined the issue as part of its consideration of the Bill. The Joint Committee is disappointed that the Government have not yet published in full their responses to their consultation on schedule 7. These are controversial issues. Of course, we need anti-terrorist legislation and there is always a balance to be worked out between the civil liberty of the subject and the powers of the authorities.

We believe, however, that it is very important that legislation distinguishes between the conventional powers to stop, to search, and to question, which can be exercised without reasonable suspicion, and more intrusive powers, such as those of detaining and taking biometric samples, for which the Committee believes the Government have not yet made a persuasive case. The Joint Committee recommends introducing a reasonable suspicion requirement for the more intrusive powers under schedule 7. I know that some argue that schedule 7 should go altogether. That is not the position of the Joint Committee nor, coincidentally, is it the position of my party, which debated this at our conference in Glasgow a few weeks ago and took a view that there should be amendment broadly along the lines set out by the Joint Committee.

The issue came to prominence, as the House will remember, in August, when Mr David Miranda was stopped at Heathrow when coming into this country on his way back home to Brazil and was detained for nine hours under the anti-terror laws. There were protests by the Brazilian Government and widespread concern about whether the powers were used extensively. We hope we can persuade the Government to take the position of the Joint Committee on Human Rights, but we will not seek to divide the House this afternoon, hoping there might be a chance not just for my hon. Friend, but even for the Minister to respond to our concerns.

[Dr Huppert]

I shall do my best to be brief to allow the Minister time to respond to the debate.

I welcome Government new clause 11. It is right to extend powers to PCSOs, allowing them to issue fixed penalty notices to cyclists riding without lights. I am a huge champion of cycling. I was delighted when the House passed a motion to get Britain cycling. One of the banes of my life in that context is cyclists who do not obey the rules of the road. Anything that we can do to get people to cycle safely and legally will make it easier for those of us who want to extend facilities for cyclists. There are sensible ways forward. In Cambridge we have been using a “lights instead of tickets” campaign to make sure that people get their lights. I welcome the new clause as a sensible step forward.

I shall spend most of my time talking about schedule 7 to the Terrorism Act 2000, to which I have tabled a series of amendments. There has been particular controversy recently, as my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) mentioned, because of the detention of David Miranda, the partner of The Guardian journalist working on the Edward Snowden leaks. This has led to the Independent Police Complaints Commission taking the Met to the High Court over failure to address complaints and how schedule 7 is used. This is a very broadly written power. It should not be a surprise that it has expanded from its original use in Northern Ireland in the 1970s to become worse and worse as illiberal Governments have made it even heavier.

It seems to me that it is not right for people who “look like terrorists” to be detained. That is exactly what happens under schedule 7. StopWatch has done a huge amount of work on this. Last year there were 64,000 schedule 7 stops—a huge number. Twenty-seven per cent. of those stopped for under an hour were Asian, much more than their proportion in the community, and 77% of those stopped for more than an hour were from ethnic minority populations. We should not consider that acceptable. StopWatch cites some chilling quotes from one man Glasgow who said that

“the first thing you ask your friend is . . . not how was the holiday, it’s did you get stopped and what did they ask you?”

If we are setting up a power that creates huge concern in the Muslim and ethnic minority populations, that will separate people from the bulk of our country and is deeply alarming. The Equality and Human Rights Commission and David Anderson QC have also commented on how damaging that is.

This is a matter that Liberal Democrats have been concerned about for a long time. It is not just about David Miranda, who has the support of The Guardian. It is also about people who are detained routinely. That is why my party has debated this and why I tabled a range of proposals. There are many concerns about schedule 7. One option would be to get rid of it. There are alternative powers in section 47A. I hope the Minister will comment on that. There are other options that we have looked at. I would like to see us committed to David Anderson QC’s proposals to limit the scope of schedule 7. The Government should introduce provisions to that effect in the other place.

I have also proposed implementing proposals that my party made at our conference. They include getting rid of the principle that authorities can stop people without any suspicion at all, restoring the right to silence for those who are detained, and questioning to be recorded from start to finish. Restoring confidence and the basic principles of the rule of law to that process and making sure that data collected are not used inappropriately should be important in the case of David Miranda. I also propose a statutory principle of annual review and a sunset clause. The Government should look at these proposals and I hope they will take advantage of the process to make sure that that happens. I am glad that that is supported by the Joint Committee on Human Rights.

I would love to deal with the proposals made by the Opposition and their proposals to ban synthetic caffeine, but in the interests of time I will allow the Minister to respond.