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15 July 2009 : Column 98WH—continued
"the case would now be referred back to the Court of Appeal"
or the Criminal Cases Review Commission, and that Michael
"could be out on licence pending the outcome of that process."
That is strong language. It has only one implication: it points to Michael's innocence.
The conviction is unsafe. The evidence is consistent with the witness statement given by Councillor Joe Anderson, leader of the Labour group on Liverpool city council, in October 2007. Reporting what he had been told by two other eyewitnesses to the crime, Bradley Thompson and Anthony Wilson, Councillor Anderson recounts how he was informed that a man called Steven Clare had initially punched Mr. Georgiev, and that
"Shortly afterwards Graham Sankey dropped a large rock on his head as he lay prone on the ground... Both men made it clear that Michael Shields was not present at the scene".
The Justice Secretary's provisional decision rests heavily on the findings of the Bulgarian court, which relied exclusively on identification evidence that would not have been admitted in courts in this country. He fails to mention the admission by Tsoni Tsonev, member of the Bulgarian Supreme Judicial Council, that there were doubts about Michael Shields' conviction, in reply to the petition placed before the European Parliament by Arlene McCarthy, MEP on 27 May 2008. Neither has my right hon. Friend referred to the concern expressed about the Bulgarian legal system in the European Commission's 2005 progress report.
I ask my right hon. Friend to revisit the report of the Merseyside police, who have no vested interest in Michael Shields but are simply reporting what they found after a thorough investigation ordered by my right hon. Friend. It is important to record that Graham Sankey, despite the confession that he made through his solicitor on 29 July 2005, has consistently refused to be questioned. Neither has he challenged the continued references to his guilt. Press reports that he no longer stands by his confession have never been backed up by any retraction statement.
I have been informed that Michael's legal team has been in touch with the CCRC since the provisional decision and that the CCRC has confirmed that it would be happy to consider a reference by the Secretary of State to consider the case under section 16 of the Criminal Appeal Act 1995. Will my right hon. Friend refer the case to the CCRC under that power?
Last Sunday, I visited Michael in prison. Later, I joined hundreds of Michael's supporters in attending a vigil at Liverpool's Anglican cathedral. I praise the outstanding work in support of Michael done by the Bishop of Liverpool, who is convinced of Michael's innocence. Those events reinforced my determination to speak out in pursuit of justice. Michael simply wants the facts of that fateful night to be known. He cannot understand why the new witness statements and the police report have not cleared him.
The people of Liverpool and the north-west are perplexed and angered at the provisional decision, which flies in the face of the findings of the Merseyside police.
Feelings are running high. I accept that judgment cannot be based on emotion but must be founded on facts, but the facts of the new evidence point to a grave miscarriage of justice. If Michael was not present at the scene of the crime, he is innocent.
I ask my right hon. Friend for an assurance that his mind is not closed. The application for a pardon requires him to consider whether there has been a miscarriage of justice. How he goes about considering that is a matter of his policy rather than of any legal test. I urge him to consider the damage caused to the rule of law by an innocent young man's remaining in prison, while another man who has confessed to the crime and against whom there is powerful supporting evidence remains unchallenged.
Outrage over the case risks diminishing public confidence in our judicial system, which none of us would want. Will my right hon. Friend carefully reconsider the detailed representations made to him and the evidence that he considered, put right this shocking miscarriage of justice and grant a pardon to Michael Shields? If my right hon. Friend feels unable to do that, will he refer the case to the CCRC, which is willing to consider it?
This is a highly unusual case. Michael Shields must not be caught between two jurisdictions. The Bulgarian court found him guilty, despite grave misgivings about the evidence that it considered. There are concerns over the complexity and doubtfulness of the identification evidence and, in particular, the dock identification, which has not been permissible in this country for decades. After Michael Shields was convicted, Graham Sankey confessed to the crime. I have detailed the critical parts of the new evidence that has emerged since then. I have commented on the findings of the Merseyside police, who carried out a thorough investigation, using the services of highly experienced officers.
Again, I thank my right hon. Friend the Secretary of State for being present. I take his presence as an indication of the seriousness with which he views this issue. I ask him to consider all the points that I have made and the representations of Michael's legal team, which will be submitted shortly. I ask him to give his full consideration to releasing Michael Shields and securing justice.
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The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I congratulate my hon. Friend the Member for Liverpool, Riverside (Mrs. Ellman) on securing this debate. I am well aware that she and other colleagues from Merseyside are concerned about the continued detention of Michael Shields and the unreliability of the conviction in the Bulgarian court. She has led the campaign for his release tirelessly. This is the third debate on the case that she has secured. The other two debates were held in November 2005 and November 2007.
I have spent more time on this case over many years than on any other single case. I first became involved in September 2005 as Foreign Secretary, when I met Mr. Shields' family for the first time. My hon. Friend mentioned that Adjournment debates are usually handled not by Secretaries of State, but by Ministers. I have discussed the matter with her and am grateful for her remarks. Given that the case involves a quasi-judicial
decision that is mine alone to make, I thought it would be inappropriate to ask one of my ministerial colleagues to handle the matter. I thought that I should give my hon. Friend, Mr. Shields and his family the respect of explaining the position myself.
This matter is not technically sub judice, because it is not currently before a court here or abroad. None the less, my role in deciding Mr. Shields' application for a free pardon is a quasi-judicial one. It follows that it would not be appropriate for me to respond to the detailed points of evidence given by my hon. Friend or others. Nevertheless, I give her the absolute assurance, which she sought at the end of her remarks, that I will carefully consider and reconsider the detailed representations that have been made and that will be made before reaching a final decision.
My hon. Friend's second question was whether I would refer the matter to the Criminal Cases Review Commission under section 16 of the 1995 Act if I decided that I could not change my provisional decision. I have considered whether doing so would be appropriate on two occasions and will consider further representations on that matter.
The facts of the case are well known, and I shall not repeat them. I offered in a letter to meet Mr. and Mrs. Shields, and I gather that arrangements are in hand. I last met Mr. Shields on an impromptu basis when the Cabinet went to Liverpool in early January this year.
I will set out how my Department has handled the matter, what action we have taken, how I reached my provisional decision and what the next steps will be. I am happy to accept interventions from hon. Members at any point. Mr. Shields has sought a free pardon under the royal prerogative of mercy. That is an ancient and seldom-used power that can be exercised by the Secretary of State on behalf of Her Majesty. It has not been used since 1996, when it was used in very different circumstances. An individual had pleaded guilty to drink-driving, but it transpired that the breathalyser was inaccurate. There was no way other than by royal pardon to declare him not guilty.
Since 1997, the Criminal Cases Review Commission, to which my hon. Friend referred, has been responsible for reviewing alleged miscarriages of justice in England, Wales and Northern Ireland, when the convicted person has exhausted the appeal process. The Scottish Criminal Cases Review Commission performs the same function north of the border. The existence of the CCRC makes it unlikely that a free pardon will again be granted in relation to a conviction secured in the UK, although that cannot be ruled out.
My right hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) in particular will remember that we actively supported the previous Government's proposals to set up the CCRC when they came before the House. There was a general view, which I subscribe to, that in principle the tricky, technical job of reviewing evidence in cases in which a convicted person claims that he or she has been the victim of a miscarriage of justice are better dealt with by an independent body than by Ministers. Nevertheless, the law is that this Minister has to deal with this case, and I have done my best to approach the matter in the correct way.
My hon. Friends are aware that the advice that I was given last year, which I accepted, was that I had no power to consider a free pardon under prerogative powers for convictions secured abroad and when, as in this case, the applicant is serving the remainder of his sentence in the UK under a prisoner transfer agreement. That advice turned on a debate about the interaction of articles 12 and 13 of the European convention on the transfer of prisoners. On 17 December last year, two senior judges of the High Court, in a decision of the administrative court, said that I was wrong about that and that I do have the power to consider a pardon for Mr. Shields. The Court set out its view on how such a consideration should be undertaken. Both Mr. Shields' legal team and I accepted the terms of the High Court judgment and did not seek to appeal.
The High Court decision was concerned with what the Court described as
"a pure question of law"
in regard to my powers under the royal prerogative of mercy. The Court did not venture a view as to whether Mr Shields' application should succeed. It did not look at the merits of the evidence, because that is a matter for me.
Immediately following the High Court judgment, I appointed senior counsel, David Perry QC, to advise me on Mr Shields' application. Mr. Perry is one of the most senior criminal barristers in the country. I also asked Mr Shields' legal team to submit any further evidence that they wished me to consider. In February, on Mr. Perry's advice, I asked Merseyside police to undertake consideration of certain matters in relation to Mr Shields' application. Following consideration of those matters, the police submitted two reports to me-one in March and the other in May.
Subsequently, I received advice from Mr. Perry on all the available evidence and on how I should consider the matter. However, I must make it clear that any decision in regard to a free pardon is mine alone. It was not possible for me to delegate the provisional decision, nor can I delegate the final decision.
Jane Kennedy (Liverpool, Wavertree) (Lab): I strongly support the comments of my hon. Friend the Member for Liverpool, Riverside (Mrs. Ellman). My right hon. Friend said that he will not comment on the detail of the matter, but when I read the police report that he commissioned and invited to be undertaken, I was struck by the strength of opinion. There are not many police officers-I have worked with many-who have taken such a genuinely supportive view of such a case.
One of the recommendations made in the police report is that the case should be referred for review. However, the police also suggest that my right hon. Friend might consider releasing Michael Shields on licence, while he continues to consider the greater ramifications of the case. For me, that was a very telling recommendation indeed, which is outside the more detailed consideration that he must rightly give to whether a pardon should be issued. When considering the case, it would be of very great significance if he could find it in his heart to allow such clemency.
Mr. Straw:
Of course, I considered the police report very carefully indeed. Detailed comment has been made about the interviews that the police conducted at my
request. The very detailed letter-I think that there are 45 pages-that was sent by senior officials on my behalf to Mr. Shields and his legal advisers goes into detail to explain what provisional conclusions I came to after looking at the police report, among many other pieces of evidence.
On the other two matters, I have said that I have already considered referring the case to the CCRC and that, so far, I have decided it would not be appropriate. My hon. Friend the Member for Liverpool, Riverside asked me whether I am open-minded: yes, I am open-minded on this matter. These are very difficult decisions indeed to take, and I must do so fairly and judicially. I am open on that, and on the last point that she raises, I am also open to representations about the proposal from the Merseyside constabulary. I have already looked at those reports, but I am open to further representations.
Mrs. Ellman: Does my right hon. Friend consider that, after reading all the evidence involved, there is a doubt about Michael Shields' conviction?
Mr. Straw: May I come on to that, because I want to explain the test that was set for me and why I think it appropriate for me to follow that? I also want to explain why I am ready to receive further representations. For the avoidance of doubt, I wish to state that, once the High Court had handed down its decision in December, the Bulgarian authorities played no part whatsoever in my consideration of Mr. Shields' application. I add-again, for the avoidance of doubt-that any possible implications for the operation of the prisoner transfer agreement have also not played any part in my consideration of the matter.
I have sought to follow the judgments of the High Court, which, as I have said, came from two very senior judges. Paragraph 34 of their judgment states:
"In principle...the grant of a free pardon would appear to require a conclusion that, taking the Bulgarian courts' judgment for what it is and without calling in question its correctness on the material which those courts considered, fresh evidence which the Bulgarian courts did not consider, taken with the material which they did consider and their judgment upon it justifies a conclusion that Michael Shields is morally and technically innocent".
That is the test that I was in principle required to follow by the two senior judges of the High Court. Questions have subsequently been raised, including by those campaigning for Mr. Shields' release, about whether that is an appropriate test.
It is worth putting on the record that, in the lead judgment of Sir Anthony May, president of the Queen's bench division, the court records at paragraph 25 that the test of moral and technical innocence was one urged on the court by Mr. Weatherby-a barrister for Mr. Shields. I am not saying that such a conclusion might not have been reached in any event, but it is absolutely clear from paragraph 25 that it was a proposal from Mr. Shields' lawyers that assisted the court in coming to its conclusion that the appropriate test was one of moral and technical innocence.
Paragraph 25 includes a précis of the submissions from Mr. Shields and states:
"Mr. Weatherby submits that the Prerogative Power of Mercy is a flexible one...The Secretary of State has jurisdiction to consider whether the claimant it morally and technically innocent...It would, said Mr. Weatherby, be quite unconscionable for the Secretary of State to allow a prisoner known to be innocent to
remain in prison...The question for the Secretary of State it whether on all the available material there has been an injustice such that Mr. Shields is morally and technically innocent."
As I say, that was urged on the court by Mr. Shields' lawyers and was accepted by them. I have to follow a test, and that is the one I have been following.
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): I should like to put on the record that I agree entirely with my hon. Friend the Member for Liverpool, Riverside (Mrs. Ellman) in the conclusions that she has reached about her constituent. I do not question the fact that my right hon. Friend will have gone through the procedure put before him meticulously. Having worked with him in the past, I know that that is how he approaches things. Does he accept that in relation to some of the issues that my hon. Friend has raised, even within the terms of the judgment handed to him, which sets the framework for his consideration of the matter, he could have reached a different conclusion?
Mr. Straw: My right hon. Friend is inviting me to come to a premature conclusion about my final decision, which, for reasons that I am sure he fully understands, I cannot do. I have to wait and see what further evidence is submitted as to whether I agree with him and his right hon. and hon. Friends. However, I should like to say that I have an open mind on the matter.
I am perfectly aware of the great anger that there is on Merseyside about the provisional decision that I have made and that there is a great campaign on Michael Shields' behalf. My right hon. Friend will know, not least from having worked with me-I thank him for his comments about that-that I do my best in these cases to apply myself to the evidence. Simply as a human being, it would have been easier all round for me if I had been able to come to the alternative conclusion. The
provisional conclusion that I have come to is the one to which the evidence has drawn me, but I have an open mind. I have explained the background to the court's adoption of the test, which was done, not least, at the urging of Mr. Shields' own lawyers. Of course, even at this late stage, if Mr. Shields' lawyers urge a different test upon me, I am ready to consider that as well.
Mrs. Ellman: If the test had stated explicitly "reasonable doubt", would my right hon. Friend have come to a different conclusion at this stage?
Mr. Straw: The reason why it is not possible for me to answer that question directly is that the test did not state that explicitly. Moreover, in all appeals against conviction, it is normal for the burden of proof and sometimes the standard of proof to shift. I was not asked about that, and it would require a complete rehearing of the original evidence to come to a judgment about the guilt of those who are arraigned before the Bulgarian court.
What I was asked to do is to come to a judgment on whether Mr. Shields was "morally and technically innocent", and that has been broadly the standard basis on which judgments of this kind-rare though they are-are taken. I draw the attention of my right hon. and hon. Friends to the fact that I have taken the Bulgarian court's judgment for what it is and have not called into question its correctness in relation to the material that that court considered.
I understand that there is concern about the test, but that was what the court said and, as I mentioned, it did so explicitly at the urging of Mr. Shields' lawyers. Before I finish, I repeat that I am very grateful to my hon. Friend and her right hon. and hon. Friends.
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