My Lords, Amendment 94E addresses a genuinely difficult problem—that is, the proper test that should be applied to determine whether a person should receive compensation for a miscarriage
of justice. Since this is Report, I should report that the debates in Committee demonstrated general agreement, which I share, that the Government are entirely correct to include in this Bill a statutory definition of those cases where compensation should be paid for a miscarriage of justice to secure greater certainty in this area of the law.
I should also report that the Committee stage debates established that there are strengths and weaknesses in each of the two options before the House. The approach adopted in Clause 161 is that compensation should be paid only if a new or newly discovered fact shows beyond reasonable doubt that the defendant was innocent of the offence of which he or she was convicted. The alternative option in my amendment is that compensation should be paid only if the new or newly discovered fact shows conclusively that the evidence against the defendant at trial,
“is so undermined that no conviction could possibly be based on it”.
The amendment has the considerable benefit of using the test which was formulated and applied by the noble and learned Lord, Lord Phillips of Worth Matravers—the then President of the Supreme Court, who I am very pleased to see in his place—at paragraph 55 of his judgment for the majority of the Supreme Court in the Adams case. That paragraph, on page 48 of the Supreme Court document, Decided Cases, states that the test, which is now in the amendment,
“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”.
I also draw attention to what was said in the same case—the Adams case—by the noble and learned Lord, Lord Hope of Craighead—who I am also very pleased to see in his place—in support of the test of the noble and learned Lord, Lord Phillips. At paragraph 97 of his judgment, the noble and learned Lord, Lord Hope, said that if a new or newly discovered fact shows conclusively that the prosecution evidence was so undermined that no conviction could possibly be based on it, then it is right in principle that compensation should be payable event though it is not possible to say that the defendant was clearly innocent. The noble and learned Lord pointed out that a person against whom there is no sufficient admissible evidence to secure a conviction should not be subject to the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is right in principle that compensation should be payable. These arguments, and others, persuaded the Joint Committee on Human Rights that Amendment 94E would be an appropriate amendment to the Bill.
A third noble and learned Lord, who I am also happy to see in his place—the noble and learned Lord, Lord Brown of Eaton-under-Heywood—dissented in the case of Adams with three of his colleagues in the Supreme Court. The noble and learned Lord, Lord Brown, was concerned that—I summarise his concern, no doubt wholly inadequately—the test applied by the noble and learned Lords, Lord Phillips and Lord Hope, would result in some defendants who were not in fact innocent
receiving compensation. My concern with that approach —which is essentially the approach adopted in Clause 161—is that it has never been the role of Ministers or courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent. Our law—the common law—applies a test memorably stated by the distinguished American advocate, Edward Bennett Williams.
He was asked whether Alger Hiss, who was imprisoned for espionage in a notorious case in 1950, was guilty. Mr Bennett Williams replied:
“He should have gotten off”.
I am very doubtful indeed of the wisdom of Clause 161 in requiring Ministers to pronounce on the innocence of people whose convictions have been overturned, especially when the court of criminal appeal, when quashing a conviction, makes no such statement.
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Your Lordships are well aware that these are often highly controversial and sensitive cases. Do we really want to encourage the Secretary of State to address, after a conviction is quashed, whether she thinks that the defendant was, in truth, innocent? Far from achieving clarity in the law, this seems to be a recipe for complex, expensive and highly acrimonious litigation. The problems that an innocence test would cause in cases such as those of the Birmingham Six, the Guildford Four or Sally Clark are very troubling indeed.
I should mention one other point. A difficulty with the Government’s approach is that the European Court of Human Rights has stated in a number of recent cases that applying a test of innocence would breach the European Convention on Human Rights. For those noble Lords who are interested in that, the Joint Committee’s Report, at paragraphs 61 to 64, sets out the relevant passages in the Strasbourg judgments. I appreciate that views differ across the House on the general role of the European court, and I am not putting this point at the forefront of my arguments in favour of the amendment.
The test proposed in the amendment will not be easy for a claimant to satisfy. Many deserving cases will fail to secure compensation. I have also to accept that some cases will be on the other side of the line, in which compensation will be payable, even though there may remain strong suspicions that the claimant was in fact guilty, even though he has not been convicted. However, we need a clear and workable definition that is consistent with legal principle. I repeat: this is a difficult problem, even though there are only between two and four successful applications for compensation a year. It is therefore not the case that a great deal of public money is at stake. For the reasons that I have sought to explain, the better solution to a difficult problem is as stated in the amendment. I beg to move.