My Lords, I express my gratitude to those who have already spoken on this very important topic. To some this may seem like rather arcane law, but it is something very simple and very clear that comes down to fundamental principle. When I spoke at Second Reading, I did so with some force, because the reality of cases reminds you why law matters. When you conduct cases where there has been a miscarriage of justice, you know why it is so important that the law acts fairly to those who have suffered the consequence of miscarriage of justice. I, too, feel shocked that the Government—and it might be supported by others—seek to say that this is about saving taxpayers’ money when the sums of money involved are very small and the number of cases are few, and when we are dealing with such an important issue of principle: that is, that we in this country believe, powerfully and rightly, that a person should be presumed to be innocent unless they have been proved guilty.
When the Court of Appeal receives new evidence—and it is rare—and they decide that that new evidence casts a different light on what went before, we make assumptions that the person is therefore is not guilty. To require, as the amended section would, that a person has to prove their innocence is an affront to fundamental principle. It is shocking that our Supreme Court reached a decision with great care and that we are now seeking to overrule that decision. To most of us, the current position is very clear. The notion that there is uncertainty is, I suggest, a confabulation to justify overturning important principle.
Therefore, I, too, wish to invoke the fact that this is about not just an article of the European court or European convention; it is also an affront to the common law built up over the experience of our nation which says that persons should be deemed to be not guilty unless the state has managed to prove their guilt. I have been involved in cases where it would be very difficult to prove that you were innocent—indeed, the cases which have been mentioned, to which I referred at Second Reading, where mothers were found
guilty of causing the death of their babies but thereafter it was felt that medical science was not yet in a place to help to ascertain possible genetic causes of sudden infant death. To ask those women who were released on appeal—having been in prison and having suffered the anguish of being accused of killing their own babies—to prove that they were innocent on the standard we are discussing is, of course, asking the impossible.
The reality is that with some cases, usually those involving the use of DNA, you can show that the miscarriage of justice most certainly involved the wrong person being accused. However, that happens rarely and usually involves calling into question the evidence that went before a jury and raising the spectre that a wrong decision was made. Too often, I am afraid, it also involves the state having behaved badly through its agents. In the cases mentioned by the noble Baroness, Lady O’Loan, in which I was involved—Irish cases where there were miscarriages of justice—false confessions had been made following the misbehaviour of police officers. Sometimes a question mark is raised over cases because the state has failed to behave appropriately.
We must be clear that, even on the balance of probabilities, it is asking the impossible for someone to show that they are innocent. Great experience gained in the common law has taught us that we do not make innocence a test; we decide as between guilt or non-guilt. On a previous occasion it was a source of shock to me to hear one of our eminent judges speak about a case where it seemed to him that it would be an affront if someone were compensated. Occasionally people are acquitted where they may be guilty but we in our wisdom know that that is a price you sometimes have to pay for having our highly regarded justice system.
I am afraid that this issue is about principle. It is not about arcane law but about the stuff that makes our legal system work and makes it something to be proud of. I sincerely hope that if the Minister does not accept that this issue has to be looked at again, in the fullness of time this House will remedy what the Government seek to do in this clause.
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