Clause
59
Provisional
grant of right to
representation
Mr.
Burrowes:
On a point of order, Mr.
O’Hara. 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.
The
Chairman:
With this it will be convenient to discuss
clauses 60 and 61 stand part.
Mr.
Burrowes:
I do not want to take up the Committee’s
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 to—ensuring
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 pilots—they 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 defence’s 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
benefits swiftly and speedily. The intention is the same: to try to
speed court processes. There have been instances in which delay has
resulted from, for example, someone being remanded in custody without
knowing their national insurance number. Many people can remember their
national insurance number, but not everyone. That can cause delay that
would be avoided if the gateways work as we envisage. The gateways are
not rocket science. We are not inventing some entirely new way of doing
things, so they should be workable. Obviously, the relevant data
protection safeguards would be needed. 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
one’s 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.
Clause
62
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.
Mr.
Heath:
That they are guilty,
really.
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 consequences—some 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 people’s 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
justice—we 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.
4
pm
It is entirely
inappropriate for there to be—either in the Government’s
mind or as presented to the public—any 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 enhanced—that
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 heaven’s 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 Government’s 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
“really did it, didn’t they”, and therefore they
are not worthy of proper compensation for the actions that the state
took in depriving them of their liberty. I do not accept that argument
for a moment. If somebody is innocent, they are
innocent——both in the eyes of the law and in the eyes of
the Executive. The arrangements for their compensation should not be
attenuated to take account of some notional prejudice within the
system. 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 scheme—and I believe that there is—we 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 debate—that 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
put the applicant back to the financial position in which they would
have been had the miscarriage of justice not occurred. That is the good
sense of the original and existing
provisions. 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
said that the court should have discretion; it is a statutory scheme,
but an assessor makes the decision, rather than the court. Section 133
sets out some of the things that the assessor must take into account
when making an award. It is not exhaustive and has not been changes for
more than 10 years. 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.
4.15
pm
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
costs—there was no term of imprisonment—was
awarded more than £2 million. Under the current scheme, a victim
of crime could receive no more than £500,000, no matter what the
circumstances or the extent of the suffering that resulted from that
crime. There is the case of a man convicted of fraud offences whose
conviction was quashed after he had served seven months in prison.
Interim payments of more than £500,000 have already been paid.
Claims totalling several million pounds are under consideration. Those
are the real cases that
prompt—
Mr.
Garnier:
Will the hon. Lady give
way?
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.
Lady’s 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 woman’s 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. Lady’s point without
doing what the Government
propose.
Maria
Eagle:
I understand the hon. and learned
Gentleman’s 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 133—we are not seeking to put a stop to the statutory
scheme—but 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 right—it 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
ago—Lesley Molseed. A few years ago, gentleman called Stefan
Kiszko who matched the profile was fitted up by the police. He was a
simple chap and awkward. He spent 16 years in prison being violently
beaten for a crime that he did not commit. After 16 years, he was
released. Indeed, I understand that the Molseed family had started
campaigning for his release because they realised that the conviction
was unsafe. I do not understand how we can set an arbitrary limit of
£500,000. Today, the money would not begin to compensate a man
for spending 16 years in prison, wrongly convicted of killing a child,
with the brutality that such a person would experience in prison and
the difficulties that he would experience after
release.
Maria
Eagle:
I understand the hon. Gentleman’s point, but
all the cases that I can cite that appear to be undeserving—I
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 individual—have 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
spectrum—deserving is not quite the right way of putting it, but
the hon. Gentleman knows what I mean—of 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.
4.25
pm
Sitting
suspended.
4.35
pm
On
resuming—
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