HL Deb 20 January 2004 vol 657 cc907-18

3.11 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, with permission I wish to make a Statement on the case of Angela Cannings.

Yesterday's judgment in the Court of Appeal in the appeal against conviction of Angela Cannings has serious and far-reaching implications. The judgment has demonstrated that, in relation to unexplained infant deaths, where the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unsafe to proceed. I share the unease expressed by the Court of Appeal in relation to such convictions.

Following similar reported comments of concern by the Court of Appeal at the conclusion of the hearing of this tragic case in December, I asked for all cases potentially involving sudden infant death syndrome to be identified as quickly as practicable. To date, some 258 convictions over the past 10 years have been identified involving the murder, manslaughter or infanticide of an infant aged under two years by its parent.

Those cases will be considered further as a matter of urgency to establish whether any, and if so, how many, bear the hallmarks of a conviction which the Court of Appeal judgment yesterday indicated may be unsafe. I expect this process to be completed swiftly over the coming weeks. I propose that in all cases which appear to meet the criteria laid down by the Court of Appeal the convicted person will be informed of these developments as soon as possible. The possibility then will be for the case to be referred to the Criminal Cases Review Commission or for the convicted person, with legal advice, to consider an appeal out of time to the Court of Appeal. The Criminal Cases Review Commission has the power under the Criminal Appeals Act 1995 to consider whether the convictions should be referred to the Court of Appeal.

I am particularly concerned about cases where the defendant has been sentenced to a term of imprisonment which is still being served. We have so far identified 54 such cases which may involve sudden infant death syndrome. These will be accorded the highest priority.

I have already spoken to the chairman of the Criminal Cases Review Commission and will be meeting him in the coming week to discuss how the review of these cases can be expedited. I have also asked the Crown Prosecution Service to conduct a review of the 15 ongoing cases involving an infant death of the sort described in yesterday's judgment.

My Lords, that concludes the Statement.

3.14 p.m.

Lord Henley

My Lords, I thank the Attorney-General for repeating that Statement. But does he find it extraordinary that he has to be dragged to the House to repeat word for word—I believe he changed three words: "today", "today" and "today" were changed to "yesterday"—a Statement he made in written form only yesterday? He had to be dragged to the House purely in response to a Question tabled by my honourable friend Dominic Grieve in another place.

Clearly the Speaker thought the matter important enough for a Question; obviously the noble and learned Lord thought it was important, because he said that the case has "serious and far-reaching implications". Therefore would it not have been better had he volunteered a Statement to the House from the start—I believe that he was present yesterday—rather than first making a Written Statement and then repeating that Written Statement in the manner of an oral Statement to the House? I have never known that in my 25 years in this House.

This is an important matter. I understand from the Statement that some 250 criminal cases are involved. There are 54 women still in prison. Will the noble and learned Lord tell us how the review will be structured and what urgency will be given to dealing with those cases where the convicted are still in prison? With what urgency will he be able to deal with them and ensure that they are released as soon as possible?

Will he tell the House how long the Criminal Cases Review Commission intends to take in its review of the case and whether that is a further review over and above the review that the Government are mounting? Still on criminal matters, will he comment on the various adjustments that have been made to both the burden of proof and standard of proof in various Criminal Justice Acts in recent years? Does he agree that this matter shows how dangerous that can be? It would be best if we could see in all criminal cases the need to maintain the rule that no one should be convicted unless—I stress—the prosecution can show beyond all reasonable doubt that the defendant is guilty.

I turn to the civil aspects. We understand from what I suspect was a rather ill judged interview in the Sunday Telegraph with Margaret Hodge—whom I gather is called the "Minister for Children"—that some tens of thousands of cases might be affected by the evidence of Sir Roy Meadows and others. Will the noble and learned Lord tell us how many cases there will be; whether the Government will appoint a judge to review all those cases; what note they will take of the GMC's review into the evidence of Sir Roy Meadows and others; and whether legal aid will be available to all those involved?

It may be, as the so-called Minister for Children said, that it will not be possible to return those children to their parents. Even so, they have a right to have their cases reviewed, because they are entitled to have the stigma of their children's removal removed from them. Will the noble and learned Lord tell us how those civil cases will be resolved?

Finally, following what I described as her rather ill judged interview in the Sunday Telegraph, what advice will the noble and learned Lord be offering to the Minister for Children, particularly in regard to her statement that it would not be possible to return children to their parents? Is that the case for every case?

3.20 p.m.

Lord Goodhart

My Lords, we on these Benches welcome the Statement by the Attorney-General, although we agree that it would have been better if an oral Statement had been made yesterday. This is clearly a high profile matter that has caused great public concern. It would plainly have been appropriate for the Statement to be made orally.

Does the noble and learned Lord agree that these cases show the vital importance of ensuring that the innocent are not convicted and that the law does not assist in convicting them? Does he agree that the prosecution must avoid using experts who have a personal commitment to a contentious view; and that it is the prosecution's job to put a case fairly and in a balanced manner before the jury, which should not involve the use of committed experts where their views are open to question?

The case recalls to mind the Orkney case some years ago which came under Scottish rather than English jurisdiction, where children from several families were taken away from their parents and some parents put on trial on the basis of what appeared ultimately to be the wholly inaccurate views of experts who believed that the children were being abused by families through satanic rituals. How quick will the review be? There are 258 cases. Some of those 258 will probably be found to have been rightly convicted, but it is clear that many appeals will be allowed; some may involve mothers who have spent years in prison wrongly convicted of a heinous crime.

Resources must be made available to ensure that appeals are heard as quickly as possible. Can the noble and learned Lord the Attorney-General give any timescale? Do the Government intend to compensate those who have been convicted on the basis of discredited evidence put forward on behalf of the prosecution? What about babies who have been separated from their families and taken into care because a previous sibling has died unexpectedly? The mother may not have been prosecuted but taking away the baby in those circumstances is a hideous punishment for a crime of which the mother has either been acquitted or not been charged.

Will the noble and learned Lord the Attorney-General assure the House that unless there are grounds for suspicion over and above the fact of the unexplained death of a previous baby, babies will not be removed from their families? Will steps be taken to restore children already taken away to their birth parents? Removing a new-born baby from birth parents and taking it into care is immensely damaging both to the child and to the child's family. Surely, removal should happen only where there is not just a risk but a substantial risk that the baby will become a victim of murder.

3.24 p.m.

Lord Goldsmith

My Lords, I start by thanking the noble Lord, Lord Goodhart, for welcoming the Statement. I may have missed it, but I did not notice that the noble Lord, Lord Henley, did that. I would have hoped that Members of the House would welcome the fact that within a very short time of an important judgment being given, I was able to announce an important review and to give an indication of the steps I was proposing to take and was taking in order to deal with that matter.

I take my responsibilities to this House very seriously. That is why yesterday I ensured that I put in the House by way of a Written Statement details of the steps I was taking. I am glad that noble Lords and other Members of the two Houses are interested to know more on this issue and want to ask questions about it. I am happy to answer questions, but perhaps I may respectfully suggest that it is simply a political point to complain about being dragged to the House when I have made such an effort both to identify the steps that should be taken and to take them.

I shall move on to the other questions raised. The noble Lords, Lord Henley and Lord Goodhart, asked, very understandably, about the time the review would take. As I have said, before the judgment in the Cannings case was produced but as a result of comments made by the Court of Appeal, I asked to identify as quickly as we could all the potential cases which might fall within the category which the Court of Appeal has now identified; that is, a category of case where the conviction is based exclusively or almost exclusively on contested, disputed, expert evidence. The interdepartmental group that I set up in the light of the Sally Clark case was able to identify 258 cases.

I have made it clear that it is extremely unlikely that more than a small proportion of those 258 cases fall within those criteria. Those are cases of infant deaths; infants killed by a parent in the past 10 years. Sadly, in some of those cases there will be clear evidence of violence having been used by a parent on a child, and such cases do not fall within that rubric. The most urgent step is to deal with the cases that I have also identified where a parent is currently serving a term of imprisonment, to consider those cases and to identify which may fall within this category so that they can be reviewed urgently and as the highest priority. I shall want to see the other cases identified. As I indicated in my Statement, I hope that that process of identification will be completed within the next weeks.

As to the next step, again, as I have indicated there are two possible courses: first, for the defendant himself or herself to consider appealing to the Court of Appeal, which may be possible—that may depend on what has happened before—or secondly, for the matter to be dealt with by the Criminal Cases Review Commission. I have therefore spoken twice with the chairman of that commission and, as I have said, I shall meet him again in the next few days to discuss how the commission can be in a position to expedite such cases that come before it. I agree with everything said by both noble Lords about the importance of urgency in relation to these cases.

As I indicated in my Statement, I asked the Crown Prosecution Service to conduct a review of the 15 ongoing cases in which the same issue may arise. I am very pleased, but not the slightest surprised, that the Director of Public Prosecutions has already issued guidance to his Crown prosecutors asking them personally to review all such cases within the next 28 days and to send them to him so that he can consider them and decide whether any such case should be pursued. I am not at all surprised by that immediate action by the Director of Public Prosecutions.

I turn to the other points raised. The noble Lord, Lord Henley, asked whether this is in some way indicative of problems resulting from a change in the burden and standard of proof in various criminal statutes. I am not aware of a change in the burden or standard of proof in any of the criminal statutes. The burden of proof remains very clearly on the prosecution. The standard of proof, except in those exceptional cases where the burden is upon the defendant to prove, remains for the prosecution to prove beyond reasonable doubt the guilt of the defendant so that, as is said these days, the jury feels sure. As far as I am aware, that remains true in all respects and I regard it as a very important part of our justice system.

Still on the question of the criminal cases, before I turn to the other cases, I was asked by the noble Lord, Lord Goodhart, whether this case shows the vital importance of the courts not being used to convict the innocent. I agree absolutely with the noble Lord. The purpose of the criminal justice system is to convict the guilty but to ensure that the innocent are acquitted. Whenever we have a circumstance in which that does not appear to be working as it should, we in the justice system must pay the closest attention to it. That is why I have acted as I have done in this case.

The noble Lord raised the question of experts. Experts need to be used in many cases. Frequently, without expert evidence in criminal cases, it would not be possible to bring a criminal to justice. The noble Lord is right to say that it is important that when experts give their evidence to a court they should do so objectively, dispassionately and impartially and should put their own expert experience before the court, not some personal commitment to a particular cause.

There is one other matter with which I should deal which touches on the criminal cases. The noble Lord, Lord Goodhart, also asked whether the Government intend to compensate any persons who have been wrongly convicted. I hope that noble Lords will forgive me; it is too early to make a Statement in relation to that as we are simply on the eve of considering these cases. It is a proper question to raise and no doubt is one to which we shall return in due course.

The noble Lords, Lord Henley and Lord Goodhart, both raised questions about civil cases. As noble Lords will appreciate, such cases raise different issues and different considerations. In a criminal case what matters is, "If you cannot be sure on the evidence that someone is guilty, that person must go free". In children cases, the paramount consideration is always the welfare of the child, which gives rise to different considerations. DfES Ministers, who are responsible for children at central government level, are considering the implications of this judgment for care and adoption cases. I am sure that as soon as they have reached a conclusion they will announce whether any—and, if so, what—steps need to be taken in relation to those cases. Noble Lords will know that it is not simply central government who have a responsibility in this area; indeed, if anything it is much more local authorities which have a responsibility in relation to child cases, and other cases are matters between private citizens. So, the role of central government is much more limited than in the case of prosecutions. I hope those answers deal with the questions raised by the two noble Lords.

3.30 p.m.

Lord Ackner

My Lords, it is not the function of the noble and learned Lord the Attorney-General to concern himself with the Family Division. Can he tell us whether the Official Solicitor is taking or contemplating taking action to investigate this situation through the family courts? On one other matter, the Attorney-General has quite rightly said that there have not been specific changes in recent legislation; for instance, the Criminal Justice Act 2003. But what has been sought to be done and admitted by the Home Secretary is that he wishes to shift the balance between the prosecution and the defence. That is why we had long debates about the admission of previous convictions, bad character, propensity and the like. So there is substance in the proposition that we should watch with great care the extent to which we yield to proposals to alter the balance between the Crown and the litigants, be they criminal or civil.

Lord Goldsmith

My Lords, I am grateful to the noble and learned Lord for his questions. He asked whether the Official Solicitor is taking action. I believe the position is this:since the passing of new legislation the Official Solicitor does not have a role at this stage. The matter has become one for local authorities which, having taken care proceedings, are under an obligation to review those orders with regularity. They are required to bring matters back to court if that is their opinion. That, as I stand on my feet, is the answer I give to the noble and learned Lord but I shall see if there is anything further I can say or any correction to be made. If so, I shall send it to the noble and learned Lord and put a copy in the Library.

As regards his second point, I am grateful for his confirmation that there is nothing that he is aware of that has changed the burden or the standard of proof. I am well aware that there are many noble Lords and other commentators who will be watching the operation of the Criminal Justice Act as it goes through. I will not make any comment on particular provisions; we debated those at considerable length. We stand by the fundamental proposition that the prosecution must prove guilt and must prove it to the criminal standard.

Lord Morris of Aberavon

My Lords, I congratulate the Attorney-General on the speed with which he has acted, the all-embracing nature of his proposals and the priority he is giving to those in prison. Will he confirm that the category he is looking at is much wider than the cases involving Sir Roy Meadow. Further, given the eminence of Sir Roy in this field, what influence has he had on other experts in cases in which they have given evidence?

Lord Goldsmith

My Lords, I am very grateful to my noble and learned friend for his opening remarks. Coming from a former Attorney-General, it is gratifying to hear his approval. He is absolutely right in saying that the category is wider than those covering Professor Sir Roy Meadow or indeed the other expert, Dr Williams, whose name was mentioned in connection with the Sally Clark case. The Court of Appeal said in its important and thoughtful judgment that it is necessary to recognise that medical science is at the frontier of knowledge. There may be cases where there is no apparent explanation for a death or series of deaths but it may still be entirely innocent and not consistent with a criminal act. The review will go further and look at all cases where there is a sudden unexplained infant death and where the conviction appears to have been based almost entirely on expert evidence, whichever expert that may have been.

Baroness Knight of Collingtree

My Lords, will the noble and learned Lord address the particular problem which many feel is the most difficult issue that came out of the interview in the Sunday Telegraph referred to by my noble friend Lord Henley. In that interview the Minister said that it would not be possible—one assumed never would it be possible—for women who were found subsequently to be perfectly innocent of harming their children ever to get their children back. That matter worries many people because nothing could be worse than the denial of one's child. Will those women who had their children taken from them wrongly ever get them back?

Lord Goldsmith

My Lords, I fully understand the concern which underlies that question. As I indicated before, the responsible Ministers in the DfES are considering the implications of this judgment and what, if any, steps need to be taken. I do not wish to prejudge what they may say. As a lawyer rather than the Minister responsible, I will simply say this. I do recognise that in children's cases the paramount consideration is the welfare of the child. I will say no more than that I can understand that there will be some cases—I do not say all cases—where a child may have been adopted or put into some long-term relationship. That child now has new parents, new family, new brothers and sisters. For any court dealing with that situation that may be a difficult issue to deal with—whether it is right to unravel that or to recognise that the child's best interest may be to be left where the child is.

Lord Laming

My Lords, I thank the noble and learned Lord for his very helpful Statement. I am sure that the whole House is appalled at the idea of an innocent person being convicted of such an awful crime. Does he agree that we need to keep a very open mind in these matters? Sadly, there are parents who do deliberately harm their children. That being so, does he accept that we will always need expert witnesses? Rather than lose confidence in their role, is it not important that we take this opportunity to improve their training? Only this evening, guidance will be produced for those in the paediatric services on how people in this field can be alerted to early signs of deliberate harm.

Lord Goldsmith

My Lords, the noble Lord is right in everything he has said. We must all be appalled at the thought of a mother tragically losing her child or children and then, even worse, being accused and convicted of a crime which she did not commit. I made that point clear in an answer in the House to a Question put by the noble Lord, Lord Lamont of Lerwick. He is right. It sadly is the case that there are parents who do deliberately harm, even kill, their children. They are among the most vulnerable of our citizens and we plainly have to do as much as we can to protect them properly. The noble Lord with his experience from the inquiry he chairs knows better than most just how awful that can be and how parents can do that. We will therefore need expert evidence in cases. However, he is also correct to say that we need carefully to consider how that expert evidence is produced. I would not go so far as to confirm today that we should have some overall training exercise for experts. The noble Lord mentioned one field for which the Home Office is responsible where further training is being given to pathologists and I very much welcome that fact.

Lord Phillips of Sudbury

My Lords, I too commend the noble and learned Lord for the way in which he has dealt with an extremely difficult matter. Given his unique position in terms of public access via the broadcasting media, perhaps I may ask him to get across two matters over which there is huge public misperception? The first, already referred to, is the paramountcy of the interests of the child which is the prevailing principle in civil matters. However, that has no bearing at all on criminal trials. There has been a tendency—and perhaps by juries too—to believe that somehow a different standard of proof is involved where a child is the subject of an alleged offence.

Secondly, some noble Lords may have heard last night a leading spokesman for one of our most famous children's charities, suggesting—quite explicitly—that while no innocent parents or mothers must be convicted wrongly, no malefactors must ever be acquitted wrongly. That of course is an impossible proposition. There are a great many cases of greyness where one cannot be certain one way or the other. Unless the great British public—and particularly the tabloids—accept that to maintain the much admired standards of our system we must accept a certain number of wrong acquittals as the price of no false convictions, we will not get very far.

Finally, I do not think that the noble and learned Lord the Attorney-General responded to the point on legal aid raised by both Front-Bench spokesmen. If there is—and it seems inevitable—a large number of difficult and perhaps long cases arising out of the review, will he assure the House that legal aid will be available on the normal terms; and in particular that the extra sum, which may be large, will not be part of its annual total? That would further reduce the amount available for civil legal aid, which is already in crisis.

Lord Goldsmith

My Lords, I thank the noble Lord for his commendation. He is absolutely right that there is a great difference—as I tried to explain—between civil and criminal cases. The paramountcy of the interests of the child is what rightly drives us and our family courts. That has no bearing in criminal trials. I am not sure that I share the noble Lord's worry that juries are affected by that in their verdicts. Of course we do not know exactly what is in the minds of juries, but I can assure noble Lords that all judges summing up in such cases will remind juries clearly and repeatedly that it is their job to convict only if they are satisfied on the evidence and to put emotions out of their minds.

I also agree with the noble Lord that it would be remarkable and wonderful if we had a system of justice that would always convict only the guilty and never acquit the guilty. However, we cannot have quite such a system. Our strong approach in this country—which I entirely endorse and which the Court of Appeal endorsed in its judgment yesterday—is that, occasionally, by relying on the burden and standard of proof—as high as they are—there will be some who are guilty but who will in fact escape because the evidence is not there. That is how it should be; and has often been put in the terms that it is better that some guilty should go free than that an innocent person should be convicted.

I cannot while standing here give the noble Lord the assurances that he asks for regarding legal aid—would that I had that control over a budget operated by my noble and learned friend the Lord Chancellor. Obviously, I have that issue in mind, and I shall want to make sure that there are no obstacles to the review taking place as it should.

Lord Mackay of Clashfern

My Lords, from my point of view, the extent to which the noble and learned Lord the Attorney-General has been able to bring forward proposals for dealing with this complex issue in such great detail, considering the time that has elapsed, is highly to be commended. Certainly, I appreciate it very much.

I am very concerned about the Family Division and the county courts' work on the family side. The Attorney-General was—I have no doubt immensely helped in bringing forward today's proposals by the fact that the Crown Prosecution Service has overall responsibility for the criminal cases which are likely to be affected by this judgment; whereas in the family jurisdiction, particularly in view of what he has said about the Official Solicitor, there is much less of an integrated national system for finding out quickly which cases might be affected.

In children's cases—as the Children Act makes clear—unnecessary delay is very harmful from the point of view of the most satisfactory outcome. I understand fully and accept what the noble and learned Lord has said about the difficulty of uprooting children—who may have been wrongly removed in the first place—who have now settled down in their new situation and extricating them again because the original decision was wrong. I can see that problem.

However, in view of what has happened, some kind of system for looking at the cases where the fundamental reason for the intervention has been an allegation that a parent has harmed a sibling of the child affected by the custody or the care order is highly to be sought. I know that it is not the Attorney-General's direct responsibility to look after these matters, but I take the view—I think rightly—that the Attorney-General has a general remit for helping the Government to reach a proper result in matters of law. I am sure that advice will be available to the Ministers in what is now the Department for Education and Skills. The issue used to be dealt with in another department, but it has now been moved.

It is very important that a national review is put in place as soon as possible. I appreciate the difficulties and the obstacles there will be, but I think that people and families—mothers particularly—who have been affected by such judgments are entitled to have the situation reviewed with the interests of their children still being paramount and very much the principal interest.

Lord Goldsmith

My Lords, I am particularly grateful to the noble and learned Lord for what he said at the beginning and also for his recognition of the difficulties that there are in the children's cases. When the noble and learned Lord held the high position of Lord Chancellor I know that that was a matter of great interest and concern to him.

I take the noble and learned Lord's point about there not being the same national system to enable cases to be identified as there is in the criminal system. That is the consequence of responsibility being with local authorities. I understand that point.

The noble and learned Lord makes important points about what should happen now. It is not possible for me to go further than to say that those very important points will be drawn to the attention of the relevant Ministers. Indeed, one is sitting next to me on the Front Bench. I know that careful consideration is now being given to the implications of the judgment in those cases.

On my own position, I have provided—and, indeed intend to provide—such advice and assistance to Ministers in that department as it is within my ability to give to help to solve these difficult issues.

Lord Lloyd of Berwick

My Lords, following on from a previous answer by the noble and learned Lord, perhaps he will tell the House how many of the 258 defendants were actually charged or could have been charged with the crime of infanticide, as distinct from murder or manslaughter?

Lord Goldsmith

My Lords, I cannot. As the Statement says, the convictions are for murder, manslaughter and infanticide—in relation to infants under two. I do not know at this very early stage how many were for infanticide. I do not know whether any in the other categories might have been charged as infanticide. I suspect not, because that is a verdict to be preferred in a case where the conditions were met. But, if I am in a position to give a further breakdown once the review is completed, I will. Plainly, when we have broken down the issue, I shall want the House to know the number of cases affected by the judgment. If I can give some further breakdown in the way that the noble and learned Lord requests, I shall seek to do so.

Lord Walton of Detchant

My Lords—

Lord Lucas

My Lords, I think that the Cross-Benchers have just had their turn.

Lord Bassam of Brighton

My Lords, it is the turn of the Conservative Benches.

Lord Lucas

My Lords, is the noble Lord aware of how deep and wide this evil runs? In my daily life, I see the little end of it, where the theories of experts are allowed to terrorise parents of children with special educational needs, particularly ADHD, dyspraxia, and the fringes of autism. All that needs to be mentioned is Munchausen's syndrome by proxy, and the parent is suddenly an evil person at the wrong end of social services and officialdom, without help and is suspected of being the one who is causing her child difficulties.

We have allowed the expert to start a witch hunt in a general way, which has terrorised tens of thousands of parents. They are among the most heart-rending things that I must deal with. Can we not use the terrible events that the noble and learned Lord has so rightly thrown light on to, and expressed an entirely admirable willingness to investigate, to reach down into the depths of our system and make sure that we offer relief in relation to not only these big cases but also the little cases? Can we ensure that we restore again the presumption that by and large parents care for their children and do not wish them harm? Will the Minister ask the Department of Health to withdraw their circular approving of this utterly discredited diagnosis of Munchausen's syndrome by proxy?

Lord Goldsmith

My Lords, this is the wrong moment in the debate to get into such controversial issues as the noble Lord raises. Much in what he says would not be accepted by the department, but now is not the time for me, or anyone else, to attempt to deal with it.