My Lords, I recognise that the great majority of noble Lords who took part in the Second Reading debate on this clause, and the great majority of those who have spoken or propose to speak in this debate, are against Clause 151. However, if I may say so, they are under a considerable misapprehension as to the essential nature of this provision.
The clause has everything to do with statutory compensation but, frankly, little to do with criminal justice. That may sound simplistic but it is true. Convictions may be quashed in a wide variety of circumstances. It may be that fresh evidence comes to light that shows that the accused could not possibly have committed the particular offence. That may be as a result of DNA evidence, or perhaps someone later admitted to the very offence of which he has been convicted. Or it may be that the fresh evidence gives rise to a “lurking doubt”, as it is called, as to whether the defendant really was guilty. Or perhaps the judge can be shown to have unfairly admitted evidence or possibly misdirected the jury so that the conviction can no longer be regarded as safe. In all these cases, the conviction must be quashed and the defendant set free, and the presumption of innocence applies at that point in all those cases. However, it would be a very great mistake to suppose that all those defendants, merely because their convictions have been set aside and they are now presumed to have been innocent, are thereby entitled to the payment of compensation.
On the contrary, under the international convention to which our legislation is giving effect, only a very restricted number of cases are entitled to compensation: only those who by virtue of new facts disclosed on a late appeal can be shown conclusively to have suffered a miscarriage of justice are entitled to compensation. The critical question is: what, for this purpose, is a miscarriage of justice? It is not—I repeat and emphasise, not—the case that any conviction subsequently shown to be unsafe and set aside is a miscarriage of justice.
In the case that we have all been considering, Adams, the Supreme Court divided by 5:4. I should make it plain, as I did at Second Reading, that I was in the minority of four. The appellants and Justice, which intervened in that case, argued for the position that is apparently being taken by those participating in this debate, whereby all those whose convictions are set aside as unsafe should qualify for compensation. That, I understand, is what the noble Baroness, Lady Kennedy, contends. That indeed clearly appears to be the point made by the noble Baroness, Lady O’Loan, at Second Reading. She said:
“If we legislate in the way suggested by the Government, we will create two types of ‘not guilty’ … those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted”.—[Official Report, 29/10/13; col. 1515.]
However, even under the amendment, those whose convictions are set aside as unsafe and who may well be, in the words of the noble Lord, Lord Beecham, truly innocent will still, by common consent, not be able to claim compensation. The international covenant that we have given effect to in our law shows that only a limited category is entitled to compensation.
The noble and learned Lord, Lord Judge, then the Lord Chief Justice, in the minority of four in Adams, explained that Section 133, which gave effect to our international obligation distinguishes the reversal of a conviction and a miscarriage of justice. These concepts are distinct. In short, for the purposes of Section 133, the reversal of a conviction and the consequent revival of the legal presumption of innocence are not synonymous with a miscarriage of justice.
The noble and learned Lord, Lord Steyn, in the case of Mullen, concluded that compensation was payable only when,
“the person concerned was clearly innocent”.
That, if I may say, was entirely consistent with the explanatory report that related to an article in the protocol to the European convention, which was enacted in terms virtually identical to those of Article 14.6, which our Section 133 is designed to implement. The explanatory report said:
“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.
In Adams, the majority devised a sort of halfway house, which was later redefined by the Divisional Court in Ali to say that compensation is payable if a new fact shows,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
That, noble Lords will readily see, is essentially the identical language to that which Amendment 15 now proposes to put into Clause 151. That, I respectfully suggest, is the worst of all possible worlds.
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First, it actually lacks principle. The notion of a prosecution case so undermined, as it was put in Adams,
“that no properly directed court could convict”,
is simply not a notion known to the court of criminal appeal. The court of criminal appeal deals only in the safety of convictions. A conviction may be unsafe because it is perfectly obvious that the man could no longer be regarded as guilty, or because doubt has been thrown on an important aspect of the evidence. It may be that the jury would have convicted in the light of new facts, or it may be that they would not. It may sound certain but there is considerable uncertainty over how this would apply. It will always be for the Secretary of State to decide, whatever the test, whether it is satisfied. The Secretary of State will have to decide, by reference to what is called in this clause,
“the evidence now to be considered”,
whether a reasonable jury, properly directed, could still have convicted, notwithstanding the doubt now thrown on some particular aspect of the evidence. It will require compensation to be paid in various cases where the defendant, although, of course, to be presumed innocent and set free, can nevertheless still be seen as quite likely to be guilty of the offence. I gave one instance of that at Second Reading, in col. 1539. The noble Lord, Lord Beecham, referred to it today, as did my noble friend Lord Pannick. However, with respect,
my noble friend misunderstood the concept of the abuse of process that we were discussing in Adams. That was the sort of abuse of process that had caused Mullen in the earlier case to be brought wrongly from, I believe, Zimbabwe and tried, when he should never have been tried. That was not the sort of abuse of process under consideration in the case that I discussed and for which I gave the facts, which I will not repeat, at Second Reading.
Let me give another instance of where a probably guilty person could fall to be compensated under the proposed language in the amendment. Let us assume that the main prosecution evidence is a confession of guilt and it can later be shown that it was procured by an inducement. It may be that the police officer said, “Come along, you’ve only got to tell us what happened and we’ll give you bail. You’ll go free”. So a confession is made, perhaps to rape, and it may be demonstrably true. It may contain the sort of facts that only the guilty person could know. It is completely irrelevant whether it is demonstrably true; if it is obtained through an inducement, it has to be disregarded. In those circumstances, on this test, that person would be compensated. It could be that, such a conviction having been set aside, the victim of the rape could bring a civil claim for damages for assault, and establish the case on a balance of probabilities, which is the test on a subsequent civil claim. That claim would succeed and the assailant would be shown to be probably guilty but nevertheless entitled to compensation.
I am conscious of the time, so I shall come fleetingly to Strasbourg. The Joint Committee and my noble friend Lord Pannick appear to understand Allen to be saying that the proposed test would be incompatible with the convention. I can entirely see those passages in the judgment that could take one to that conclusion, although those were not the facts of that case and it was not the conclusion arrived at by the court. To my mind, that simply cannot be right. It would be complete nonsense. The higher the state raises the bar for what is necessary to qualify for compensation, the less the chance that a decision to refuse compensation would be understood as an allegation of criminal liability—in other words, a denial of the presumption of innocence.
If, as everybody agrees, a claimant is to be refused compensation because his conviction can be shown to be merely unsafe, in the sense that a jury could properly have convicted him on the other evidence, notwithstanding the new fact which cast doubt on part of the evidence that really might be thought to suggest that he was probably guilty. If, however, he is refused because he cannot conclusively demonstrate his innocence that is a great deal further away from suggesting that he was probably guilty. In other words, Strasbourg swallows the former, the camel, and it would be quite illogical for it to strain at the latter, the gnat.
There was much else that I would have liked to say, as said at Second Reading, including how I am perfectly agnostic and relaxed as to whether the burden on the claimant for compensation should be that of establishing on a balance of probabilities rather than beyond reasonable doubt. Those, however, are not the critical issues today. The critical issue is: how large should be
the category of those who on any view will be truly innocent but refused compensation, and how large the category of those who are truly guilty but get compensation? That is the critical question that eventually this amendment, or otherwise, will decide.