My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.
My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was a innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.
Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.
Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the
conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.
In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.
Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.
That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.