The Minister has given an interesting and full reply to what has been a very interesting and compelling debate, demonstrating yet again that consideration of these matters goes further and deeper in Your Lordships’ House than it does in another place, where, frankly, this issue was dealt with in fairly peremptory fashion.
I am grateful to all Members of your Lordships’ House, particularly the noble and learned Lords, for their contribution to the debate, and I will certainly be taking my own advice and that of the Minister and reading very carefully and more than once the contributions that have been made in this very difficult area, both philosophically and in terms of jurisprudence.
It is interesting that the Minister rejects the test that is advanced in the amendment as not acceptable and again repeats the mantra that applicants are not required to prove their innocence because, as he implies, the amendment suggests that everybody whose
conviction is quashed should be compensated. That is not what the amendment is intended to achieve and not what it says. The noble and learned Lord, Lord Hope, identified one category where purely procedural defects of a significant nature—for example, somebody being wrongly brought over to this country for trial— was sufficient to make a conviction vulnerable to quashing, and indeed it was quashed. That did not give rise to the sort of concerns that the amendment seeks to address.
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The noble and learned Lord, Lord Brown, with whose support I was very content when we discussed aspects of the secret courts Bill, alas differs from me and others with his approach to these matters. Of course, I very much respect his appearance and wisdom. It is interesting that, towards the end of his speech, he posited two categories about which questions might be asked. He asked how large the category of innocent people not getting compensation would be, and how large the category of guilty people getting compensation would be. That is a factor, but it is not the crucial factor that we ought to weigh as we determine whether to make what is, in my submission and that of other noble Lords, a significant change in how guilt and innocence are treated, at any rate for the purposes of compensation. The noble and learned Lord, Lord Hope, took the view—others have expressed it—that the Ali test does not go far enough and somehow distorts the decision in the Adams case. I want to look very carefully again at both those judgments and to consider whether my amendment is fit for purpose. It might need reconsideration.
The noble and learned Lord referred to the judgment of the noble and learned Lord, Lord Phillips, in that case and mentioned the noble and learned Baroness, Lady Hale, and her judgment. The noble and learned Lord, Lord Phillips, advanced in paragraph 55 of his judgment the proposition of a more robust test of a miscarriage of justice than that which had been formulated by Lord Justice Dyson. His formulation was this:
“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 upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied”.
That is consistent with the terms of the amendment. It seems to make very much the same point. The noble and learned Lord, Lord Hope, disagrees about that and I want to consider very carefully that distinction. The noble and learned Lord, Lord Phillips, went on to say:
“This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.
The question is whether the Government’s position would facilitate that or not. That is where there is a significant measure of doubt.
I was also slightly puzzled by the noble and learned Lord’s quotation from the judgment of the noble and learned Baroness, Lady Hale. I have already quoted
the noble and learned Baroness. Referring to the text of her judgment explicitly, she referred to,
“the ‘golden thread’ which is always to be seen ‘throughout the web of the English criminal law’”—
that is, proof of guilt beyond a reasonable doubt. She went on to say:
“Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent. If it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. 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”.
That seems to be more consistent with the amendment that I have tabled and to which I speak than the proposition contained in Clause 151.
There are clearly matters that I and many of us will have to revisit before we get to Report. The Government’s proposals in Clause 151 are not consistent with the thrust of our traditional common law policy in these matters and with the judgment in Adams. We wish to see that what had been understood to be the position, and which Adams stressed, is reinstated. I hope that in exploring these matters further we might reach a point where doubts about the amendment and its possible rephrasing might help us achieve that objective.
These are serious matters. I remind your Lordships that we are not talking about large numbers of cases and large numbers of guilty people being compensated, or about large numbers of any category of people being compensated. Not that many cases achieve compensation. The point is the direction of travel in which we address these issues, and the impact that that has on our traditions and system of justice.
At this stage I will not seek to test the opinion of the House. I look forward to another interesting and hopefully productive debate when we get to the Report stage of the Bill. I beg leave to withdraw the amendment.