My Lords, it will occasion no surprise that I support this amendment, nor perhaps need I declare my obvious interest as the author, in my judicial capacity, of the definition of miscarriage of justice that it supports.
The amendment has been recommended by the Joint Committee on Human Rights, which has advanced two reasons for supporting it. The first and lesser reason is that, in determining whether there has been a miscarriage of justice as defined in the amendment, the Secretary of State, or the courts in reviewing her decision, will not have to infringe the presumption of innocence that is required by Article 6.2 of the European Convention on Human Rights. This is not true of the definition proposed in the Bill. The second and more compelling reason is that the definition in this amendment better meets the requirements of justice than the definition proposed in the Bill.
I will deal first with the effect of Article 6.2 of the human rights convention. Article 6 provides for the right to a fair trial. Article 6.2 provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
On the face of it, this is no more than a rule of criminal procedure that has long been part of our law: the burden of proving guilt is on the prosecution. Indeed, the Strasbourg jurisprudence recognises that the primary effect of Article 6.2 is to impose this procedural rule. But the Strasbourg court has identified what it has described as “a second aspect” of Article 6.2, which applies to protect individuals after they have been acquitted in a criminal trial. Shortly summarised, the second aspect prohibits public officials and authorities, including courts, from suggesting that a person who has been acquitted of a criminal charge is, or may be, guilty none the less.
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This second aspect of the presumption of innocence is not one whose principles I have found easy to analyse when looking at the quite voluminous Strasbourg jurisprudence on the topic. This was the task undertaken at length by the Grand Chamber in the case of Allen, and it did not find it very easy either.
I hope that I may be forgiven if I attempt to summarise the relevant conclusions of the Grand Chamber very shortly and with a degree of simplification. When considering a claim for compensation under Section 133 of Criminal Justice Act 1988 by an applicant whose conviction has been quashed on the ground of fresh evidence, the Secretary of State or a court reviewing her decision must not use language that suggests that the applicant was, or may have been, guilty of the offence charged. So to suggest will infringe the second aspect of the presumption of innocence in Article 6.2. If, however, the Secretary of State or the court reaches a decision in language that does not suggest that the applicant was, or may have been, guilty of the offence in question, there will be no violation of the presumption of innocence.
In the subsequent case of Adams, the fourth section of the Strasbourg court held that the application of the test of presumption of innocence approved by the majority of the Supreme Court, which is that for which this amendment provides, had not involved a violation of the presumption of innocence. This was because the Secretary of State and the Supreme Court had been able in Adams to apply that test without giving any consideration to the question of whether the applicant was guilty or innocent.
Will the same be true if the applicant for compensation has to prove that the fresh evidence demonstrates beyond reasonable doubt that he or she was innocent of the offence charged? I doubt it very much. It is true that the test focuses on the cogency of the fresh evidence. Strictly, the Secretary of State could consider whether the fresh evidence was so cogent as to demonstrate innocence beyond reasonable doubt without casting aspersions on the innocence of the applicant, but this will not be easy in practice and I doubt whether the Strasbourg court will accept the sophistry that such a distinction involves. For these reasons, I suggest that the first ground for preferring the amendment is made out: it is Strasbourg approved.
However, I would find it regrettable if this were the only reason for preferring this amendment, for I confess to finding this area of Strasbourg jurisprudence not wholly satisfactory. It focuses on form and not on substance. In substance, whatever interpretation is given to miscarriage of justice, something more than quashing a conviction is properly required, as the Strasbourg court has accepted, before a miscarriage of justice can be demonstrated to have occurred. This is because the quashing of a conviction does not necessarily establish innocence. That is what has given rise to the present problem.
So I come to the second reason for preferring this amendment. I suggest, as I did in Adams, that Section 133, and Article 14.6 of the international covenant to which it gives effect, has two implicit objectives. The primary objective is that an applicant who has been convicted when he was in fact innocent should be compensated for the consequences of the wrongful conviction. The second, and subsidiary, objective is that an applicant whose conviction has been quashed but who in fact committed the offence charged should not be compensated. No test will achieve both these objects in every case, but to require an applicant who has succeeded by fresh evidence in demolishing the case upon which he was convicted to go further and prove his innocence beyond reasonable doubt is surely to stack the cards too heavily against him. This amendment strikes the right balance and it is for that reason that I support it.