My Lords, the question before your Lordships’ House in this amendment is very simple. Should we—indeed, can we—as a House agree to Clause 161 as it stands? If we do, the result will be that to get compensation for a wrongful conviction—a miscarriage of justice—the person wrongfully convicted will have to be able to prove beyond reasonable doubt that he is innocent of the crime for which he was convicted. Not only must he prove this, he must prove it on the basis only of new or newly discovered facts that led to the miscarriage of justice.
England and Wales, and indeed the whole of the UK, have long accepted that no one has to prove their innocence of a criminal offence; it is sufficient that there is reasonable doubt about whether they committed a crime. If such reasonable doubt is present, they should be acquitted. This principle, which evolved over the centuries in English common law, is one of the bulwarks of our criminal legal system. It has been adopted in many countries across the world and was reflected in Article 11 of the Universal Declaration of Human Rights, drafted, as we all know, largely by British legal experts, and subsequently in Article 6 of the European Convention on Human Rights. The presumption of innocence is an important protection not just here but across the world.
There are cases in which evidence is fabricated or a confession secured in breach of the law, or even where the scientific evidence presented to a court can subsequently be shown to be inaccurate. In such circumstances, a person may have been convicted. Their only route after exhausting the appeals process is to go to the Criminal Cases Review Commission, which has the power to refer such cases to the Court of Appeal for consideration.
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Since the Criminal Cases Review Commission was established, it has received more than 15,500 applications. It was established, I think, in 1997, and by September 2013 the commission had made 537 referrals—only 4% of all the applications it received. Of those 537 cases, 509 were heard by the Court of Appeal, and 351 convictions were quashed and 147 were upheld. So some 70% of all cases referred to the Court of Appeal by the Criminal Cases Review Commission have resulted in the quashing of a conviction.
In the Adams case, to which my noble colleagues have referred, Lady Hale said that,
“if it can be conclusively proven that the State was not entitled to punish a person, it seems to me he should be entitled to compensation for having been punished”.
We know that, over the 15 years, compensation has been paid in 300 cases. There are cases in which the Government have exercised their discretion in favour of the applicant. However, a wrongful conviction does not lead automatically to a right to compensation, which is why we have this issue before the House today.
So, in the context of 350 convictions quashed, the Government have paid compensation in 300 cases. I accept that there is not necessarily a direct correlation between the numbers, but it is not a huge incidence of compensation when one considers that the starting point was the number of people who sought to get their convictions quashed—some 15,500.
If there was significant doubt about the application of the test for granting compensation, one would expect to see it reflected in the number of judicial revues of refusal to compensate. However, over the 15 years there have been only 30 such applications in England and Wales, and the Government have told us that in only one case has there been a favourable judgment—although, 16 remain to be resolved by the courts. In Northern Ireland, unfortunately, there are not satisfactory and complete records. However, we know that, between 2003 and 2009, there were only four judicial reviews, of which two were successful. It was originally suggested that Clause 161 was designed to save the cost of legal challenges, but these figures show quite clearly that this is not an issue.
However, there is a situation that could be clarified, which is what Amendment 94E seeks to do. The more serious the crime for which a person is wrongfully convicted, the longer the sentence that will be imposed, and, particularly where they continue to protest their innocence, the longer they will be imprisoned. Where the conviction is wrongful, the impact on their subsequent life, even if the conviction is subsequently quashed, will be enormous.
We can think of cases such as that of Sally Clarke—referred to by the noble Baroness, Lady Kennedy—and other women who were wrongly convicted on expert evidence, and a failure to produce evidence, of murdering their babies. The impact of such a conviction on a woman grieving for the terrible loss of her baby will be massive. She will lose her family life, her place in society, her social life, her education, her employment, and quite possibly her marriage and her future. Moreover, it is no secret that prisoners tend to react with hostility to people convicted of crimes against children.
In other cases, such as those where a conviction is secured by fabricated evidence or evidence secured through threat or intimidation, the impact will be similar. I can think of a young man whose conviction at the age of 17 for a very serious crime was overturned after he had served 10 years. His confession evidence had been secured through serious threats and other misconduct. He had lost his youth and his opportunity to gain an education and build a career, and he was terribly traumatised. When he was finally released, he had to start to build a new life—not easy in such circumstances. He was finally compensated, but money can never compensate fully for such an experience, and the wheels of justice grind exceeding slow in such cases.
The difficulty with the test proposed in Clause 161 is that, as the noble Lord, Lord Pannick, said, it requires the applicant to prove their innocence solely on the basis of the fact that gave rise to the quashing of their conviction. If a person is convicted, for example, on erroneous expert evidence, the fact that that evidence should not have resulted in conviction can be proved; what may not be provable from that fact is that the person was innocent of the crime.
The new subsection proposed in the clause, as drafted by the Government, states that there will have been a miscarriage of justice for the purposes of compensation,
“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
Amendment 94E seeks to create a test which reflects the judgments of both our own courts and the European Court of Human Rights. It is clear from case law, as the noble Baroness, Lady Kennedy, said, that there is no difference between the Supreme Court’s decisions and those of the European Court of Human Rights.
A “clear innocence” test was introduced in the Mullen case in 2005, but that was subsequently rejected by the courts here. The Government argue that only a decision by the European Court of Human Rights that the test in Clause 161 is incompatible with our obligations can determine the question. However, we cannot have such a decision before we have passed the Bill and made it an Act, and I submit to your Lordships that it is undesirable that it should be necessary to push the issue right through to the European Court again.
It is clear from the court’s case law that any statutory test using the language of innocence will be incompatible with Article 2. The court’s reasoning in Allen v UK, Adams v UK and ALF v UK is clear, beyond doubt, that any test which requires the claimant for compensation to show that the new or newly discovered fact proves their innocence will be incompatible with the presumption of innocence. That is what the Joint Committee on Human Rights, of which I am a member, said in paragraph 66 of its second report on the Bill. Moreover, as that report states, if we introduce the test in Clause 161, it would remove the basis on which the court found in those cases that Section 133 itself is not incompatible with Article 6(2). The JCHR said:
“It is therefore clear that the new s. 133, as amended by clause 161, would be vulnerable to inevitable and almost certainly successful challenge in the European Court for being incompatible with the presumption of innocence”.
I urge your Lordships to support this amendment. It will clarify the situation while preserving, in its entirety, the common-law principle of innocence. It will enable the Government to continue to operate the compensation system without further expensive legal challenge.