Anti-social Behaviour, Crime and Policing Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 12th November 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

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.