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Finally, Amendment No. 86A in this group would extend the proposed time limit for making a claim for compensation in relation to a miscarriage of justice from two to six years. Our proposed limit of two years for making an application is the same as that for making an application for criminal injuries compensation. We do not accept that it should be increased to six years, in line with that for bringing many—but, of course, not all—types of civil action. All that is required to make an application for compensation is the completion of a relatively simple form, giving the factual details of the case or, indeed, simply writing a letter setting out the circumstances. There is no equivalent burden of proof to be met or substantial argument to be presented.
In the vast majority of cases, two years from the date of the quashing of the conviction or the date of the retrial should be sufficient time to make such an application. We have of course made provision for an application made after the two-year period to be accepted in exceptional circumstances. Someone being incapacitated for a large part of the two-year period might well be regarded as an exceptional circumstance.
I am sorry that we disagree with the noble Lord on the principle of capping payments for miscarriages of justice. We think, for the reasons I have attempted to state, that we are right about it. I hope that the concession—if that is the right word—that we have made in raising the amount for those who have suffered the longest miscarriages of justice slightly assuages the noble Lord when he hears our arguments. We have moved some way in his direction, and I hope that he feels able to withdraw his amendment.
Lord Thomas of Gresford: My Lords, many of the arguments in the Minister’s response indicate how blinkered the Government are in still equating compensation for criminal injuries with compensation for miscarriages of justice. I will not repeat what I said but, for example, justifying the £500,000 cap proposed in the Bill because that is what victims of criminal injuries get, and the sum that is one and a half times the average wage because that is what they get, indicates how the Government have failed to grasp the essential difference. At some point, this will come back to haunt them. Having been party to a generous scheme of compensation in the sense that people are put back, after they have been released from prison, to the position in which they would otherwise have been, in so far as money can do that, and then abandoned that principle for no other reason than to save money—we have not heard anything on principle from them at all—the Government will be haunted by this for a long time.
At this time of night, I do not propose to push this matter to a vote. However, in subsequent months and years, we will come back to this issue time and again—especially when the press get hold of a particularly vicious miscarriage of justice which illustrates my points. I did not say that the
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Amendment, by leave, withdrawn.
[Amendment No. 86B not moved.]
Lord Bach moved Amendment No. 86C:
“(a) £1 million in a case to which section 133B applies, and(b) £500,000 in any other case.”On Question, amendment agreed to.
[Amendment No. 86D not moved.]
Lord Bach moved Amendments Nos. 86E to 86G:
(1) For the purposes of section 133A(5) this section applies to any case where the person concerned (“P”) has been in qualifying detention for a period (or total period) of at least 10 years by the time when—
(2) P was “in qualifying detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
(3) In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—
(4) P was “in excluded concurrent detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
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(5) But P was not “in excluded concurrent detention” at any time by virtue of subsection (4)(a), (b) or (c) if P’s conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.
“the relevant offence” means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));
(8) In relation to England and Wales, “remanded in custody” has the meaning given by section 242(2) of the Criminal Justice Act 2003, but that subsection applies for the purposes of this section as if any reference there to a provision of the Mental Health Act 1983 included a reference to any corresponding provision of any earlier enactment.
Clause 61, page 46, line 29, leave out from “Wales)” to end of line 30 and insert “for “section 133” substitute “sections 133 to 133B”.”
On Question, amendments agreed to.
Lord Thomas of Gresford moved Amendment No. 86H:
After section 11 of the Magistrates’ Courts Act 1980 (c. 43) (non-appearance of accused: general provisions) insert—
(1) Where a magistrates’ court has proceeded in the absence of the accused and the court has imposed a fine following conviction, any warrant to enforce the fine or other financial penalty may be suspended or withdrawn and the matter returned to the court which convicted the offender.
(3) Regulations made under subsection (2) shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person.
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(4) In subsection (3), “vulnerable person” means a person who could not reasonably be expected to act on his own behalf including, but not limited, to—
The noble Lord said: My Lords, the amendment inserts a new clause which would permit the withdrawal of warrants in a case where a magistrates’ court has proceeded in the absence of the accused and imposed a fine which is then enforced by means of a warrant. The noble Lord, Lord Lucas, has a great interest in this matter. Noble Lords are looking round, but he cannot be here and therefore I am putting forward the amendment with his consent.
Following our discussions in Committee, the noble Lord, Lord Lucas, and the Z2K Trust had meetings with the Minister and they made some progress, but two major points are outstanding: first, while defaulters or their representatives can ask for the cases to be reheard by the magistrates’ court, the Government have said nothing about the fines officer or the bailiff referring back to the courts the case of vulnerable people who have been fined disproportionately in their absence. Noble Lords may remember that in Committee we made the point that if a person does not know that he has been summoned to court and does not know that a fine has been imposed it may be that the first he knows of these proceedings is when the bailiff knocks on the door. The purpose of the provisions in the amendment is that at that point the bailiff should be able to consider the position of the people with whom he is dealing, not simply to exercise his powers but to take a decision as to whether in all fairness and justice this matter will be referred back to the magistrates’ court.
Secondly, many of your Lordships who have experience as magistrates know that in imposing a fine it is necessary to have regards to the means of the offender. The court in the absence of the defendant and without any notification to him may be unaware of the financial circumstances of the person concerned. Fines officers and bailiffs need to be under a positive duty to report back to the magistrates’ court cases of vulnerability or disproportionate fines in relation to means for the magistrates to reconsider. That is not terribly difficult. Generally speaking, bailiffs do not exercise their powers immediately but take time; they warn the person concerned and then go back. In the period before finally enforcing the order the bailiff has ample time to consider the person concerned and whether the case should be reported back.
The noble Lord, Lord Lucas, tells me that he found the expectations far too high in the Ministry of Justice about the capacity and knowledge of the relevant procedures among vulnerable people. For
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The amendments that we have tabled deal with those problems. I invite your Lordships’ attention to them. I have already referred to subsection (1), where the financial penalty may be suspended or withdrawn.
9.15 pm
Subsection (2) provides that the Secretary of State should make regulations that will enable a bailiff to suspend or withdraw the warrant and return the matter to the court. Subsection (3) provides that:
“Regulations ... shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person”.
Subsection (4) defines that vulnerable person as,
- “children under 18 years of age ... the elderly ... persons with a disability ... the seriously ill ... the recently bereaved”,
We have to have a system for the enforcement of fines which is humane and just. I beg to move the amendment in that context.
Lord Bach: My Lords, of course we accept that vulnerable people may have difficulty in dealing with some issues. However, we cannot accept the new clause—although we are grateful to the noble Lord, Lord Thomas of Gresford, for raising this matter again—because powers are already available to ensure that warrants outstanding against vulnerable people may be referred back to the courts. These powers are already used. That is not to say that we ought to have a system that simply allows a person routinely to stop a process after they have committed an offence, ignored a summons, failed to appear at court, or failed to respond to repeated correspondence from the court; but even at the latest possible stage, when a bailiff is engaged, there is and ought to be a process whereby the matter can be halted in the case of a vulnerable person.
The new clause provides that where an offender has been convicted in absence and fined, a warrant to enforce the fine or other financial penalty may be suspended or withdrawn. Regulations may provide that those who may suspend or withdraw the warrant may include a court, a member of Her Majesty’s Courts Service, or any person employed in enforcing the warrant. The regulations under the new clause would also have to set out the steps to be taken when a person is deemed vulnerable. Finally, the new clause attempts to define a vulnerable person for the purposes of this power.
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As the noble Lord, Lord Thomas of Gresford, told the House, following the withdrawal of this amendment in Committee on 3 March my noble friend Lord Hunt and I had a useful meeting with the noble Lord, Lord Lucas. I believed that we reached agreement on the extent of the current powers to deal with the withdrawal of distress warrants. That meeting was also attended by representatives of the Zacchaeus 2000 Trust, which does such valuable work in assisting vulnerable people.
At that meeting, my noble friend gave an undertaking that our officials will develop guidance for the courts which will clarify their powers to withdraw such a warrant. He also agreed that officials will consult the trust as well as other key stakeholders, such as, of course, the Magistrates’ Association and the Justices’ Clerks’ Society. My noble friend followed up that meeting with a letter to the noble Lord, Lord Lucas. The Reverend Paul Nicolson of the trust kindly copied my officials into a response to my noble friend’s letter, indicating that he thought some points had not been answered. These are the ones that the noble Lord has quite properly raised tonight. The first concerns the fines officer.
Let me deal with the referral back to court by a fines officer or bailiff. I remind the House that under Schedule 5 to the Courts Act 2003 the fines officer has the power to refer a case back before the magistrates’ court at any time. For example, the fines officer could do this if they did not have at their disposal suitable delegated powers to deal effectively with the offender. In practice, this power enables a fines officer to return a case to court where it is clear to them that the offender is vulnerable and genuinely unable to pay the fine. The magistrates could consider the powers which they have at their disposal, which include the power to remit or reduce the level of the fine as they feel appropriate.
Bailiffs, too, should refer the matter to court if they come across someone who they consider genuinely vulnerable. There is concern that the National Standards for Enforcement Agents—which is only guidance for bailiffs—is being widely ignored in practice. However, the bailiffs have a contract with Her Majesty’s Courts Service and are required by that contract not to take enforcement actions in certain situations. The relevant paragraph is 6.31 of the specification for private enforcement provision. I quote briefly:
“The Contractor shall not take any action to levy distress without prior reference to the court if the Defaulter: is in hospital or nursing home; appears to suffer from severe physical or any mental disability; is an elderly person who has difficulty dealing with his/her affairs; is suffering long-term sickness, serious or acute illness or frailty, which has resulted in a recent period of hospitalisation or defaulter being housebound and can provide evidence of sickness for the period in default”.
Some noble Lords may say, “Yes, but in practice this means nothing to the vulnerable person with the bailiff knocking at the door”. That is not the case, in our view.
If a person has a complaint about a bailiff, the first thing to do is to complain to the company that the bailiff works for. This is important because the
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We acknowledge that bailiffs have a difficult job, but we accept that some do not always do that job as we might like. We are fully committed to the regulation of the bailiff industry. I firmly believe that regulation of the industry will drive up standards by improving training and raising professionalism and behavioural standards where necessary. Part of that improvement will come from improving compliance with the national standards where that is needed. Noble Lords will know that primary legislation in 2007 delivered important enforcement law reforms, including provision for an enhanced certification process for bailiffs ahead of full regulation. The House will also remember the Tribunals, Courts and Enforcement Act 2007. The next step is to develop the underpinning rules and regulations that will bring those reforms into force. A scoping exercise to that end has commenced involving a series of meetings with relevant parties. It is anticipated that this scoping activity will be completed by May of this year.
Lastly, what about the argument—perhaps the noble Lord’s most powerful argument—that some of these people are simply too vulnerable to engage in this process? I stress that those who help to support vulnerable people—and thankfully there are many in our society, both volunteers and relatives, who do—must do all they can to ensure that they do not wait until the bailiff is at the door.
The key is to contact the fines officer before matters get to that stage. The fines officer can advise offenders, help them to understand what has been ordered by the court and explain the implications of default. They can advise offenders where they can get help managing their finances, where that is needed. Fines officers can help offenders to understand how they can appeal against the decision of the court, or make a complaint about enforcement action taken either by the court or by bailiffs themselves. It is therefore vital that offenders, especially those who could be considered vulnerable, keep in touch with the court. We cannot emphasise strongly enough the need for offenders to use fines officers as a way of keeping in touch with the court and for help with understanding the enforcement process. If they do so it will reduce the number of occasions when the first face-to-face contact which the offender has with the court is through a bailiff on the doorstep attempting to execute a warrant of distress in lieu of payment of a fine. In the light of what I have said and the work that we are doing on this, I hope the noble Lord will withdraw his amendment.
Lord Thomas of Gresford: My Lords, before the Minister sits down, he referred to work in progress and the introduction of a regulatory regime for bailiffs. Can we have some idea of the timetable? When is it likely to be put into effect?
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