My Lords, this amendment is in my name and those of my noble friend Lady Smith and the noble Baroness, Lady O’Loan. It relates to Clause 151, dealing with compensation for miscarriages of justice where new evidence comes to light some time after—indeed, sometimes very long after—a criminal trial procedure has been concluded and the defendant convicted and sentenced, and which demonstrates beyond reasonable doubt that the conviction was unsafe. In those cases, the Criminal Justice Act 1988 requires the Secretary of State to pay compensation where the conviction has been reversed or the claimant pardoned. It should be emphasised at the outset that such cases are few and far between, with only two cases a year succeeding out of around 50 claims.
At Second Reading we heard in a compelling and powerful speech from my noble friend Lady Kennedy of The Shaws of an inquiry that she chaired into sudden death cases of infants whose mothers’ convictions were ultimately overturned. We also heard of a case in which a woman whom she represented served 11 years in prison for an arson attack that killed two people but of which it eventually transpired she was innocent. The noble Baroness, Lady O’Loan, reminded us of what might be termed the Irish cases, in which after a very long time compensation was also paid for serious miscarriages of justice.
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As my noble friend Lady Kennedy of The Shaws emphasised:
“The point of compensation is to remind the state of its responsibility to hold those who act for it to the highest standards”.—[Official Report, 29/10/13; col. 1541.]
It is also to make some reparation for the damage inflicted upon those wrongly convicted.
It is instructive to look at the impact assessment on this aspect of the Bill, published as it was on 9 May. In terms of the financial implications, it claims,
“an estimated benefit of around £100k per year”—
a minuscule amount compared, for example, to the recently identified cost of the botched universal credit scheme of some £140 million. Interestingly, the assessment goes on to assert that compensation for the victims of miscarriages of justice is a “vexed subject”, and that:
“Some MPs”—
I note in parenthesis that Members of your Lordships’ House are not cited—
“and pressure groups may be opposed to any limitations of the current scheme”.
In a particularly telling phrase it goes on to say that,
“there would be a reduction in the amount of taxpayers’ funds that are spent on litigation in a challenging economic environment”.
It even goes on to assert:
“The Government also has a strong record of success in relevant Judicial Review proceedings”—
somewhat at odds, one might think, with their current efforts to reduce the scope of judicial review.
The assessment goes on to claim that the purpose of the provision is,
“to ensure that there is a consistent and unambiguous definition of what a miscarriage of justice is for the purposes of identifying eligibility for compensation”—
a point to which I shall return shortly. It even claims that the alleged lack of clarity makes it difficult for potential applicants to assess the likelihood of receiving compensation, as if that were the true rationale of the proposal, and that a clear definition would ensure that those individuals who are entitled to receive compensation would do so,
“thereby increasing the welfare of this group of people”.
What the Government really want is not just a clear definition but one of which they approve. They clearly do not approve of that definition provided by the Supreme Court in the Adams case, which pronounced that the test should be whether:
“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based on it”.
Basing compensation on a test requiring innocence to be established, which is in effect what Clause 151 requires, would, in the words of the noble and learned Lord, Lord Phillips,
“deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude … those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation”.
In the case of Ali, the court suggested the following formulation:
“Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
It is that formulation which the amendment seeks to embody, and it does so because the Bill in its present form, wittingly or not, undermines the basic principle of our English law that guilt has to be proved beyond a reasonable doubt, not that innocence has to be proved. It is a semantic quibble for Ministers to say that that same principle should not, in effect, extend to claims for compensation for wrongful convictions. We should not import the Scottish “not proven” verdict—in effect, “not guilty but we know you did it”—into our system at any point, including this point of compensation.
The Government claim that the Bill does not require the applicant to demonstrate innocence but that,
“the Secretary of State has to be satisfied that the new fact on which the conviction was quashed shows clearly that the applicant did not commit the offence for which he or she had been convicted”—
a distinction, it might be thought, without a difference.
The clause allows compensation,
“only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence.
However, for the purposes of a claim, this of course effectively requires a negative to be proved—all too likely to be not merely a formidable but in some cases an almost insurmountable challenge and one which, in practice, would fall to the applicant to attempt to meet.
The noble and learned Lord, Lord Browne of Eaton-under-Heywood, at Second Reading indicated his support for Clause 151, but even he implicitly accepted that it requires the applicant to prove his innocence beyond a reasonable doubt. The noble and learned Lord offered what he called,
“a slight modification to it, a slight dilution”,
so that, instead of the person having to prove his innocence beyond reasonable doubt,
“he need establish innocence only on the balance of probabilities”.—[Official Report, 29/10/13; col. 1537.]
Even that, however, would often be very difficult and would still represent a significant dilution of the presumption of innocence.
The noble and learned Lord, Lord Browne, referred to a case in which two brothers were convicted of an offence but where the convictions were set aside after 12 years. One was retried, having made confessions of guilt in the interim, but no retrial could apparently be made of the other, who had remained silent. The noble and learned Lord thought that any compensation claim made by that brother would have succeeded on the Adams test. Even if that were correct, however—and it is debateable—it would not justify abandoning the principle enshrined in our traditions and in the amendment. Hard cases can all too often make bad law, as the noble and learned Lord effectively acknowledged when he accepted that some people who are truly innocent “will go uncompensated”.
The Joint Committee on Human Rights addresses the problem in its fourth report in six months for this Session—which is, perhaps, a telling indication of the propensity of this Government to arouse concerns on issues going to the heart of our system of justice. The Joint Committee cites Article 14(6) of the International Covenant on Civil and Political Rights, which prompted the introduction of compensation by the enactment of
Section 133 of the 1988 Act and Article 3 of Protocol 7 to the ECHR, which it describes as almost identical. The Joint Committee regards a condition of requiring proof of innocence beyond reasonable doubt as,
“incompatible with the presumption of innocence”.
It quotes the recent decision of the European Court of Human Rights in the case of Allen v the United Kingdom, which rejected the Government’s case that compensation cases in relation to miscarriages of justice were neither criminal proceedings nor sufficiently closely linked to criminal proceedings. The Government’s argument in this respect is little more than legalistic casuistry of the most blatant kind. It is matched, in the Government’s memorandum on the Bill purporting to address issues arising under the convention, by the insouciance of the claim that:
“The judiciary has not been able to agree on the right test”.
After Adams and Ali, that is a highly misleading assertion. The problem is that the Government regard it as the wrong test, but there is indeed an agreed test now.
The Joint Committee concludes that,
“requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence, which is protected by both the common law and Article 6(2) ECHR”.
It recommends that Clause 143—as it was in the draft Bill—“be deleted”, as is proposed by my noble friend Lady Kennedy. It is a matter of judgment whether that course of deleting the proposal altogether is preferable to amending the Bill in the way in which I propose. The House will wish, as I do, to listen carefully to the arguments before, at a later stage, determining a final course of action. At the moment, I lean towards embodying the clear definition in statute, which is what my amendment seeks to achieve. In either case, we could do no better than to hearken to the words of the noble and learned Baroness, Lady Hale, in Adams, quoted by the Joint Committee on Human Rights, when she said:
“Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt ... He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”.
I respectfully agree and I urge your Lordships to do likewise. I beg to move.