My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.
However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.
The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.
I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:
“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—
that, of course, is the test in the amendment—
“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform
that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.