Criminal Justice and Immigration Bill
Provisional grant of right to representation
Mr. Burrowes: On a point of order, Mr. OHara. Is it appropriate to consider clauses 59, 60 and 61 together, as they all deal with criminal legal aid?
The Chairman: If it is convenient to the Committee to do it that way, I am perfectly happy to do so.
Question proposed, That the clause stand part of the Bill.
Mr. Burrowes: I do not want to take up the Committees time for too long with the issue of legal aid. I should declare an interest as a legal aid practitioner. I have three matters to address. The intention behind the clauses is one to sign up toensuring that representation orders are put in place early, at the time of investigation and before a formal charge has been made.
My first question to the Minister is whether clause 59 is concerned with saving costs by ensuring that representation orders do not involve double-counting. At the moment, claims are made for police station work and for work undertaken in the courts. Where a case comes within a representation order ambit, it then falls on a standard fee scale, which by implication limits the costs concerning police station and court work. Is that right, or is the clause concerned with ensuring that representation orders are granted early to allow the administration of justice to proceed promptly?
My second point relates to clause 60. I welcome it, as representation orders are often blocked because information about passportable benefits does not proceed quickly to the courts. I seek an assurance that the necessary technology and administration exist for courts in England and Wales to implement clause 60.
My third point relates to clause 61 and the pilot programme. This Government are, in many ways, addicted to pilotsthey occur in various areas, and evaluations are eventually published. Although it is welcome that before proceeding with changes to criminal defence funding, the Government wish to test them with pilots, is it not more appropriate to listen to practitioners about legal aid matters? One such area is means testing. If the Government had listened carefully to practitioners concerns about the problems that might flow from an over-bureaucratic means-testing regime, there would not have been the difficulties that ultimately needed to be dealt with by way of additional directions and regulations to amend the legislation. I do not object to pilots in any way, but they are not always needed if there is proper consultation, such as with practitioners in the criminal defence service.
Maria Eagle: I hope that I can reassure the hon. Gentleman. The purpose of clause 59 is primarily to speed cases up by granting representation at an earlier stage in appropriate instances. Things can move faster if a delay to enable the defence to obtain legal aid is avoided.
Thought needs to be given to the specific conditions that govern provisional representation orders, including the possible triggers, the type of work, the appropriate level of representation, the authority to undertake such work, and the correct fee structure. Those matters have not yet been decided on. An order might be particularly helpful in certain types of case such as fraud cases, in which considerable work has to be undertaken before charges can be brought. It might speed cases through the court process, and that, rather than sneaking people into existing fee structures, is the aim of the clause. It will increase the defences capacity to deal with the case by ensuring earlier representation.
The information gateways are about trying to improve the existing arrangements to ensure that the application process can highlight those on passported
The hon. Member for Enfield, Southgate said that the Government are addicted to pilots. That is because we believe in evidence-based policy making rather than prejudice-based policy making, or in hoping that what one thinks will work will actually work in practice. It is after 3.30 in the afternoon now, so I am waking up again!
Clause 61 deals simply with a slight problem in the existing power that allows for pilots. We want to make it a bit clearer that pilots can be localised rather than having to relate to the entire system. Pilots are about learning the lessons more effectively by trying out policy change first, instead of implementing it across the entire piece, crossing ones fingers and hoping that it will work because one thinks that it will. I hope that that reassures the hon. Gentleman and that he is therefore content for the three clauses to stand part of the Bill.
Question put and agreed to.
Clause 59 ordered to stand part of the Bill.
Clause s 60 and 61 ordered to stand part of the Bill.
Compensation for miscarriages of justice
Question proposed, That the clause stand part of the Bill.
Harry Cohen: The clause deals with compensation, and I should like to make a few points on it. It will reduce the limitation period for compensation for miscarriages of justice to two years and impose an upper cost limit. I have some concerns about those measures.
A Ministry of Justice press release equated compensation for the victims of miscarriages of justice to compensation for victims of crime, as though they were comparable or set against one another. However, in reality, there are significant differences between the two. A victim of crime should receive proper compensation, but the person who did it should bear the cost. The state bears the cost, through the Criminal Injuries Compensation Authority, but civil action can be taken against perpetrators of crime, who may end up paying damages. The state deals with miscarriages of justice, which is completely different. By the way, the assertion in the press release was that if we reduce the amount given to the victims of miscarriages of justice, we could increase the amount given to victims of crime, which is not the case. Without actually saying so, the press release implied that the victims of miscarriages of justice are unworthy and that they are almost the criminals.
Harry Cohen: Yes. Whether that has resulted in the reduction of the time limit to two years, or the opposite, it is not the right approach in my opinion. Some victims of miscarriages of justice have suffered terrible consequencessome have had their lives ruined or even foreshortened, so it is not right to compare them to the victims of crime.
A more appropriate comparison, which was made by Liberty, would be with civil court processes for damages claims. Those processes have a six-year period in which they permit the bringing of civil actions, and it would be appropriate for that to apply to the victims of miscarriages of justice. That view is shared by Liberty.
I am also concerned about the upper limit that will be imposed. In some cases, especially the ones in which peoples lives are badly affected, there is a case for ensuring that the compensation reflects the entirety of the damage caused. The actual amount could be quite a low proportion of that, which would be a matter of concern. I wanted to take the opportunity provided by a clause stand part debate to signal my concerns about the measures.
Mr. Heath: The hon. Member for Leyton and Wanstead is absolutely right to draw attention to his concerns about the clause. It is preposterous to suggest that reducing the availability of compensation for the victims of miscarriages of justice somehow rebalances the scales between the victim and the perpetrators, which is how the Government often like to portray it. We are not talking about perpetrators when we talk about the victims of the miscarriages of justicewe are talking about victims of the state. Such people are victims of the worst possible manifestation of state action short of judicial execution; which is to say that they are deprived by the state of their liberty without cause, wrongly.
It is entirely inappropriate for there to beeither in the Governments mind or as presented to the publicany linkage between the unfortunate victims of crime and the unfortunate victims of a miscarriage of justice through the courts. As the hon. Gentleman says, absolutely correctly, no linkage exists in reality. We are not talking about a common fund. The money does not come out of a fixed pot so that in order to reduce the compensation available for miscarriages of justice, the position of victims of crime must be enhancedthat is simply not the case.
I greatly deprecate the reductions in the criminal injuries compensation fund. It is wrong that we are so parsimonious in that respect. For heavens sake, let us not say that as a result of that we must also fail to compensate people for depriving them of their liberty, which is what the Government intend to do in this respect.
The courts have proper discretion in the area, and that should not be limited in the way that the Government suggest. What I said, sotto voce and from a sedentary position when the hon. Gentleman was talking, is that there seems to be an underlying view in the Governments proposals that someone who is a victim of a miscarriage of justice is really a guilty party. That person may have got out of prison, but they still
My argument is simple. I do not think that we should have this artificial limitation, as it would not reflect the genuine injustice that has been perpetrated. If there is a deficiency in the criminal injuries compensation schemeand I believe that there iswe must look at that. That is where we should concentrate proper resources, so as to make it more effective in dealing with the victims of crime who should undoubtedly be better compensated than they are currently in the absence of proper reparation from the perpetrator.
Finally, I agree with the hon. Gentleman that the right person to compensate a victim of crime is, where possible, the criminal. However, we must accept that there are instances in which that is not possible, and that is the role of the state.
Mr. Burrowes: I endorse the remarks of the hon. Members for Leyton and Wanstead and for Somerton and Frome. My concern is to avoid getting into a press-release type of debatethat the clause is all about rebalancing the criminal justice system agenda; plainly it is not. That does not make sense. We are all concerned about the victim, and we should all be concerned about justice. Justice shows its face in various areas. We want justice for the victim and we want to ensure that those who are found guilty are properly prosecuted and sentenced appropriately.
None of us supports miscarriages of justice. They do no good to the person who is a victim of one, and furthermore, the victim of the offence itself will not be assured that justice has been served by that miscarriage of justice. It is wrong to use the clause to seek to equate and bring into line those who have been the victims of miscarriages of justice with other victims. For the Government to introduce this legislation on the basis of bringing compensation for the wrongly convicted into line with that for victims of crime, is the wrong approach. We need some assurance from the Minister that that is not the rationale behind the clause, but I doubt that we will be convinced.
Presently, there is no time limit for making an application for compensation in respect of a miscarriage of justice, so applications can come before the Secretary of State many years after the convictions have been quashed. Why is that inappropriate, and why should there be a two-year limit? Why has that period been chosen? Why has the Government set the limit of £500,000? Is it really about wanting to bring it into line with claims made by victims of crime? Surely, that is not an appropriate rationale. Surely, the position is that those who are the victims of a miscarriage of justice should be looked at in their own right. They will not be able to take any civil action, and that is why there is good sense in the original, existing scheme, whereby the assessment of damages for a miscarriage of justice is governed by the assessment of damages for civil wrongs. The position was that assessments sought to
The Government have sought to create an artificial barrier with regard to the time limit and the amount to be paid out to try to justify that rebalancing of justice exercise. That is wholly wrong. The only agency that is in a position to right that wrong is the state, which should certainly accept the responsibility to put the individuals concerned back in their original position in reasonable terms. The cap that has been put in place is wholly arbitrary, and there is no justification for it. Indeed, the state has no justification for escaping its responsibility to compensate the victims of the mistake. Only the state is in a position to correct it, and that needs to be done wholly and reasonably without any artificial levels.
Maria Eagle: Is the hon. Gentleman suggesting that we are seeking to escape that obligation? We are not seeking to abolish the statutory scheme, but to place limits with regard to time and overall payout.
Mr. Burrowes: I am saying that the state is evading its full responsibility by not compensating the victims of that mistake. It is seeking to impose this level of £500,000 across the board, regardless of the circumstances that have allowed an individual to become the victim of a miscarriage of justice, and evade the need to put them back into their previous position. The clause challenges the Government about their whole view of justice and the principle of justice. It is for the Government to justify how they can rationalise those levels on their responsibilities.
Maria Eagle: Clause 62 makes important amendments to section 133 of the Criminal Justice Act 1988, which provides compensation for miscarriages of justice. As my hon. Friend the Member for Leyton and Wanstead said, it introduces a time limit for making an application and clarifies the position on eligibility for compensation when a conviction has been quashed but a retrial is pending. It changes the way that compensation is assessed and introduces limits on the overall amounts of compensation payable and the amount payable for lost earnings.
I do not for a moment argue that those who suffer a miscarriage of justice are anything other than victims, but a victim of a miscarriage of justice receives, on average, 50 times more compensation than a victim of a violent crime, and we do not believe that that is right. Substantial compensation for miscarriages of justice will still be payable in appropriate cases in accordance with our international obligations. We are not seeking to evade our obligations, but to place reasonable limits on the time and the amount that can be paid out.
Section 133 of the 1988 Act fulfils our international obligations to pay compensation. The Secretary of State decides on eligibility and an independent assessor then decides the amount to be paid as part of the statutory scheme. In relation to that, the hon. Member for Somerton and Frome was slightly wrong when he
Hon. Members might remember back to 19 April 2006, when the then Home Secretary, my right hon. Friend the Member for Norwich, South (Mr. Clarke) announced a number of immediate non-legislative changes to the compensation schemes and signalled his intention to legislate in the terms set out in the clause.
Currently, there is no time limit on making an application for compensation. That brings the same problems as any assessment process that does not have limitations. It means that sometimes applications are made many years after a conviction has been reversed. That, in turn, has all the usual problems associated with delay: papers and other important documents might not be available, thus making it difficult to make proper and fair decisions, beyond reasonable doubt, about whether there has been a miscarriage of justice.
The clause introduces a two-year time limit for making an application for compensation. The two-year period will run from the date that the conviction is quashed or a pardon granted. It will not run from the date of conviction, so there is no reason why it would put the individual at any disadvantage that cannot be overcome. In exceptional circumstances, an application made outside the two-year limit may be regarded as having been made in time. Exceptional circumstances in this context might include the physical or mental incapacity of the applicant. Ignorance of the existence of the compensation scheme would not be regarded as an exceptional circumstance. The period of two years has been chosen because that is the period for making a claim to the Criminal Injuries Compensation Authority. That seems like a reasonable period to set as a limit.
Mr. Burrowes: I am grateful for that information on the reason for the two-year limit, but it is not convincing. At present, there is no time limit and the assessment of damages is done on the same terms as a civil action. The fact remains that the victim of a miscarriage of justice does not have recourse to civil action. In terms of time limits, those for civil action would extend beyond two years. The argument for a two-year limit is not convincing.
Maria Eagle: It is perfectly open for any individual who has been the victim of a miscarriage of justice to bring civil claims if they wish, but the statutory scheme is separate.
Mr. Garnier: Does the two-year limit start from the date of the miscarriage or the date of the release of the individual from prison?
Maria Eagle: I thought that I said that, but I may have been talking to myself. The two-year time limit runs from the date that the conviction is quashed or a pardon granted, rather than from the date of conviction. In that respect, we believe that it is a reasonable time limit. It equates to the time that one has to make a claim to the Criminal Injuries Compensation Authority if one is a victim of crime.
In approximately a third of the cases in which a court of appeal quashes a conviction, a retrial is ordered. At present, it is technically possible for an application for compensation to be made pending a retrial. It is doubtful whether the compensation would ever be payable because, pending a retrial, it would not be possible to say that a miscarriage of justice had been established beyond reasonable doubt. For the avoidance of doubt, the clause will make it clear that an application for compensation can be considered only when the issue of a retrial has been resolved. That seems a sensible arrangement. The date on which the acquittal at retrial occurs or on which the prosecution is formally not proceeded with is the date when the time limit for making the application will begin to run.
On assessing the compensation, under the current provisions, the assessor can take account of other properly secured and unquashed convictions and reduce the non-pecuniary element of the award if he thinks it appropriate. By the way, we hope that our assessor, Lord Brennan, is recovering very well from his mishap the other day. Apparently, he has asked for some work to be sent to him, so he is clearly not going to be stopped by what happened. We all wish him well, although it sounds like he is fighting fit anyway.
The Bill will enable the assessor to make deductions in respect of other convictions or contributory conduct from the whole award, not just the pecuniary element. Such cases where the award might be reduced include where the applicant has unspent convictions or was drunk and provoked a fight that subsequently led to an unsafe conviction. That is in line with the way in which victims of crime have deductions made from compensation awards in such circumstances.
I want to deal with the point made by Committee members about whether it is right to limit awards of compensation in terms of time or overall pay-out by referring to several cases that have been processed. I will not mention any names and I do not want Committee members to think that I am suggesting that all those who are properly compensated for miscarriages of justice fall into the category of cases that I am about to set out. It is absolutely clear that in some circumstances it is completely right for people to be compensated up to the highest possible level after convictions, but in some cases it is clearly wrong that people can receive the level of compensation that has been received.
Let us consider, for example, a man convicted of a series of sexual offences against children. Convictions for offences in relation to one of those children were quashed on appeal, but all the other convictions stood. He was awarded £27,000, whereas the tariff award for a victim of rape would be £11,000. A man convicted of
Maria Eagle: I will give way to the hon. and learned Gentleman after I have set in context one of the reasons why the Government feel that this measure is the right way forward. A man convicted of smuggling offences for which he was fined and ordered to pay coststhere was no term of imprisonmentwas
Maria Eagle: If hon. Members let me get to the end of my sentence, I will give way. These are the types of circumstances in which my right hon. Friend the Member for Norwich, South, when he was Home Secretary, made the statement that he did in April 2006 and set in train the changes that are now before us in the Bill. There are real issues to be resolved.
Mr. Garnier: I am sorry that I disturbed the hon. Ladys paeans of prose. Those are very interesting figures, but they do not mean very much because we do not know anything about the background to the cases. Let us take the case of the man who had been wrongfully convicted of one of a number of sexual offences. We do not know whether the compensation was for a lengthy period in prison in relation to that offence. The other seven or eight or whatever it was offences might have led to cautions or some other non-custodial disposal.
In relation to the customs offence, I think that the figure was something like £1 million for the wrongful conviction. We do not know what damage was done to the man or womans reputation or what loss they suffered as a consequence of being arrested and convicted. They could have lost their job. They might have been a hedge fund millionaire doing quite nicely down the road when their career was blighted for ever.
In relation to the man convicted of sexual offences, we should bear it in mind that it would have been perfectly possible not to compensate him at all if all that he was seeking compensation for was loss of reputation, because he does not have a reputation for being anything other than a sex offender. The acquittal for one does not really absolve him of the reputation for the others. There are all sorts of practical solutions to deal with the hon. Ladys point without doing what the Government propose.
Maria Eagle: I understand the hon. and learned Gentlemans point, but it is public money that is being paid out. We do not resile from the fact that payments should be made under section 133we are not seeking to put a stop to the statutory schemebut it is perfectly reasonable to balance those requirements against what happens to victims of crime. All our constituents will believe that it is reasonable to do that. I accept fully that Opposition Members may not feel that this is the right way forward, but it is perfectly legitimate that Government Members argue that it is.
Mr. Walker: The hon. Lady is rightit is perfectly legitimate to have a debate about the issue. No one here would deny that. However, someone has recently been arrested for the murder of a young girl many years
Maria Eagle: I understand the hon. Gentlemans point, but all the cases that I can cite that appear to be undeservingI accept what the hon. and learned Member for Harborough said about not knowing all the circumstances; I do not seek to point the finger at any one individualhave taken advantage of the scheme as it is. I do not suggest that they should not seek to do so, but the point is that we not believe that the scheme is properly balanced, and that is what we are about.
I do not seek to suggest that a case such as that mentioned by the hon. Member for Broxbourne, which has been in the news lately and which we have been aware of for many years, is not at the other end of the spectrumdeserving is not quite the right way of putting it, but the hon. Gentleman knows what I meanof how deserving an individual is. However, it is perfectly legitimate, and within the requirements of clause 133 and under our national obligations, to limit compensation for victims of miscarriages of justice. We argue that it is a proper limit, and that any comparisons that we make about how the system deals with victims of crime are legitimate comparisons to make.
Mr. Garnier: Surely, the simple point that the Minister wants to make is that the Government cannot afford it. If she made an argument based on something as intellectually honest and simple as that, we would understand, but when it is dressed up with all that other stuff it makes the argument more difficult to understand or believe.
Maria Eagle: I am sorry that the hon. and learned Gentleman feels that I am simply dressing up the argument that the Government cannot afford it. That is not where the changes have come from. If he were to look back at the statement made by my right hon. Friend the Member for Norwich, South in April 2006, he would see that the changes arose out of concerns that were expressed at length in that statement. It is not simply a matter of cost, but of fairness. The way our constituents view matters is another legitimate point to take into consideration. I fully accept that Opposition Members have a different view, and that is perfectly legitimate, but I have put forward our reasoning for the changes. I hope that the Committee will accept the clause.
Question put, That the clause stand part of the Bill:
The Committee divided: Ayes 9, Noes 6.
Division No. 4 ]
Question accordingly agreed to.
Clause 62 ordered to stand part of the Bill.
Clause 63 ordered to stand part of the Bill.
The Chairman: We are about to embark on part 6 of the Bill, which is a natural break. The next clauses will give rise to much debate and some people in the room have not had a chance to stretch their legs, so I propose that we should have a comfort break until 4.35 pm.
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