My Lords, I agree with the speeches that have been made this afternoon. Clause 151 should not be included in the Bill unless it is amended in order to restate current law, as the noble Lord, Lord Beecham, suggested. There are three reasons for that. The first is the reason about which the noble Baroness, Lady Kennedy of The Shaws, spoke; namely, a defendant does not have to prove innocence at trial. It would be contrary to basic principles to require the defendant to prove innocence in order to obtain compensation for a wrongful conviction. Even the Scottish verdict of not proven, to which the noble Lord, Lord Beecham, referred, does not, as I understand it, require the defendant to prove anything at all.
The second point is the practical one, which is as important as issues of principle in this context. The point was made at Second Reading by the noble Baroness, Lady O’Loan, and the noble and learned Lord, Lord Hope of Craighead, and made this afternoon by the noble Baroness, Lady Kennedy of the Shaws.
It will often be very difficult indeed for an innocent person to prove their innocence: the evidence may simply be unavailable. It is very unfair that they should be unable to secure compensation for the miscarriage of justice.
The third point is that the approach adopted by Clause 151 breaches the European Convention on Human Rights because it contravenes the presumption of innocence in Article 6.2 of that convention. All 17 judges of the Grand Chamber of the European court stated this on 12 July in the case of Allen v United Kingdom, a case about compensation for miscarriages of justice. It was a unanimous judgment, which found that there was no breach of the presumption of innocence, but an important part of the court’s reasoning, at paragraph 133, was that the courts of the United Kingdom,
“did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.
That is the test that was stated by the noble and learned Lord, Lord Steyn, in the case of Mullen in 2005—found in 1 Appeal Cases, page 1—in the Appellate Committee of your Lordships’ House. The noble and learned Lord, Lord Steyn, took the view that Section 133 did contain a proof of innocence test. That approach was not adopted by the Supreme Court later, in the Adams case.
Clause 151 now wishes to introduce the approach of the noble and learned Lord, Lord Steyn. It would be a quite remarkable step for Parliament to enact legislation now which contravenes a clear and recent statement in a unanimous judgment by the Grand Chamber of the European court, a step which should be taken only in the most exceptional circumstances, where some fundamental principle of English law is at stake. That is not the case here: we are not dealing with a clause that seeks to maintain some fundamental principle of English law. Indeed, to the extent that fundamental principles are at stake, they are those explained by previous speakers in this debate and which Clause 151 will frustrate and breach.
I will make one other point. At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I am very pleased to see in his place today, said he was concerned about a case in which the conviction was quashed because of an abuse of process by the prosecution. However, my understanding of the Adams judgment in the Supreme Court is that compensation is not, in any event, payable under the current law in such a case. The Supreme Court describes such cases as category 4 cases:
“Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted”.
The Supreme Court said very clearly that such cases do not, under current law, confer a right to compensation.
At Second Reading, the noble Lord, Lord Taylor of Holbeach, said that Clause 151 is designed to introduce certainty into the law, but Section 133 already has a clear meaning, as the noble Lord, Lord Beecham, explained. The Government intend to change that meaning; I hope they will withdraw this clause before Report.