I rise to support Lords amendment 112 and oppose the Government’s amendment in lieu. The Minister told us that the Government were moving to allay the concerns raised by the use of the word “innocence” and its abuse in the Bill as originally drafted. Of course, many of us argued that the wording used in the original Bill changed all the normal presumptions about innocence under the rule of law and that it was tilting things to say that because someone had not proved their innocence they could remain guilty, even though they had been released on a quashed conviction. We were concerned not just about the word “innocence” but about the fact that the burden of proof would be reloaded for cases subject to review on the basis of new evidence that could lead to a quashed conviction. We were concerned that the question of compensation would be tested by altering the burden of proof so that new evidence had to prove someone’s innocence. The onus was being put on that person and their legal team to show the strength of the evidence.
The Government’s response to the Lords’ fairly reasonable and measured amendment is to say that they have solved the problem of innocence by using the term “did not commit” about the offence. The Minister was asked again and again to tell us the difference. A brand of soup—I cannot remember which—used to be advertised by the slogan, “The difference is in the thickness.” We are being told that there is a big difference and the Minister is emphasising its importance, but he cannot explain, specify, spell out or measure in any way the difference between whether someone can show that the evidence proves that they are innocent of an offence or whether they can show that it proves that they did not commit the offence. Even some of the interventions from the Government Back Benches seemed to rest more on whether there was evidence that an offence had been committed than on whether there was evidence that the person had actually committed the offence.
There are cases, of course, in which we know that gross and horrible offences have been committed, but that is very different from saying that that proves that a person who was charged and convicted of that offence has committed it. At other times, offences that might or might not have been committed are subject to questions and conjecture. We might consider our experiences in this House, as we might be thrown into the spotlight of public judgment about whether or not we did something. If we consider “did not commit” and “innocent” in that context, we might start to tease out some of the differences.
If as MPs we were arrested on the basis of some allegation, the fact that we were not charged and nothing more happened would show that we were innocent, but would other people necessarily say that it proved that no offence had been committed and nothing had happened? Things might be different; there can be a difference between “innocent” and “did not commit”. As the hon. Member for Hayes and Harlington (John McDonnell) said, it is hard to prove a negative. We know from recent events of major publicity and political import in which allegations were made that someone had spoken to and treated police officers in a particular way, leading to consequences and all sorts of sweeping media and public judgments—although thankfully not court judgments—that that person was put in the position of having to prove a negative. They were asked to prove that they did not say what they were meant to have said and that they did not behave in the way that they were meant to have behaved.
We need to think not only about the hard and serious cases when we consider miscarriages of justice in this jurisdiction; some of the questions about the difference between “innocent” and “did not commit” can be asked closer to home about cases that do not necessarily reach the criminal courts. If we are conscious about language and the standards, judgments and measure of such things, it might help us and make us a wee bit more sensitive about how we word things as legislators.
The Lords amendment is designed, I believe, to meet the problem that the Government were seeking to address in the Bill. The Government said that they did not want to create a situation whereby the quashing of a conviction led either to the automatic fact of compensation or to the automatic assumption or expectation of compensation. They felt that some other test or qualification was needed. That was what the Government decided; it might not have been the starting point for some of us who have campaigned on miscarriages of justice cases such as those of the Birmingham Six and the Guildford Four. Long after the latter conviction was overturned, I worked with Gerry Conlon and his mother to try to ensure that there was an apology that fully vindicated them and voiced their innocence, because many people in the system and the media were still trying to hide behind the pretence that it was a technical quashing of the conviction but that the conviction itself was due and proper. For them, the issue is not compensation but the absolute assertion of innocence. That was why offence was taken at the use and abuse of the term “innocence” in the original Bill, but that was not the only issue. The burden of proof was altered and an attempt was made to allow in the system for someone who had been convicted and imprisoned for a long period not to be entitled to compensation, because they could not prove beyond reasonable doubt that they did not commit the offence or their innocence.
Lord Pannick’s amendment accepts the Government's premise that there needs to be a definition and bases that definition on many issues that have been tested in other cases, including, as we have heard from the Minister, the Adams case. Based on the working and practical use of the law, the Lords amendment is wise and considered in its suggestion that a new or newly discovered fact should show conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it. That is not a hard test, as
it does not open up things to conjecture. It basically allows courts to do what many appeal courts and more senior courts often have to do in considering the material evidence that would have been in front of a lower court and to make a judgment on that basis.
The Lords amendment would simply allow someone, after their conviction has been quashed, to pursue compensation on the basis that the quality of the new evidence shows that there would not have been a conviction in the first place. By refusing that, the Government are basically seeking to return to a situation in which the courts, the police and the prosecution service could be seen as part of a nexus of pursuing and achieving a miscarriage of justice. The beauty of the Lords amendment is that it would clearly take the lower court out of the frame, because it states that had the lower court known about such evidence, it would never have achieved the conviction.
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What we have not heard in the Government’s case today, or indeed at other times, is exactly what the state’s case would be in relation to some of those compensation cases. Will the prosecutor and the police basically say, “No, we are contesting this, because the quality of the evidence we had was good enough and would have been worthy”? That would create, to use Lord Denning’s terrible phrase, an “appalling vista.” We might end up with the law, as it is stated here, meaning that the state authorities will still use the new wording offered by the Government to make that suggestion and to implicate the courts in that case as well.
As we know, the courts have been able to make wise and sensitive judgments based on the balance of the material available—the material that was available historically and that is available currently. Lord Pannick’s amendment would allow the courts to continue to behave in that measured and responsive way and to take full account of the fact that a conviction has been quashed, but the issue of compensation does not flow automatically from that; it relates to testing whether or not the evidence, had it been available the first time, would have undermined the original conviction. That seems reasonable to me, because it rests on what would have been reasonable for a court to decide, and on the judicial system having confidence in its norms, practices, assumptions and presumptions. It would not rely on anybody else having to discharge an inordinate burden of proof of their innocence—of whether they had committed an offence, if it was known to have been committed, or of whether they committed an offence that might not be known and not even fully proven, because whether or not it was committed and who was involved in the conspiracy could be a matter of conjecture.
I would also like to point out that victims of miscarriages of justice have not only been offended and insulted by the way the Government brought forward their original clause and their clumsy amendment in lieu; they are also clear that the issue has never been simply about compensation alone. Indeed, I am very conscious that, along with Gerry Conlon and other victims of miscarriages of justice, and along with the hon. Member for Hayes and Harlington and others, we worked with the Ministry of Justice in the previous Parliament to try to provide some other remedies and support for victims of miscarriages
of justice. As the Minister said, people who have been wrongly convicted face enormous challenges in putting their lives back together.
However, those victims of miscarriages of justice are not given the sort of psychological support and remedial therapy that the Government rightly make available to released hostages, for example; to those who have had dire experiences while serving abroad in the military or potentially in custody; or to those who have been held hostage in civilian situations or as volunteers overseas. In those cases, highly specialised support and treatment is made available, yet the traumas and the adjustments that they have to try to make are very similar to those of victims of deep miscarriages of justice and a harrowing time in prison, perhaps because of the nature of the offence for which they were charged and the nature of the treatment they received, and not just from prison authorities, but from the prison population.
I ask the Minister, in moving beyond the immediate detail of the Bill, as well as in considering compensation, which I believe the Government are misaddressing in their amendment in lieu to the reasonable Lords amendment, to look to the other issues, because if he is saying that compensation should not be the only answer and the only thing we are thinking about, what other answer are the Government providing, because they have failed to move forward on the measures examined by the previous Government?
I find it hard to take seriously anything he said today, because he still cannot explain the difference, and exactly the import of that difference, between what he is offering in his original clause and the amendment in lieu. The reality is that the only real difference—the valid and important difference—is that which is contained in the Lords amendment. That is why the House should agree to Lords amendment 112.