Anti-social Behaviour, Crime and Policing Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 29th October 2013 Lords Chamber

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

My Lords, I propose to focus on just one clause in this lengthy Bill. I refer to Clause 151, in Part 13, concerning compensation for miscarriages of justice. Let me make plain at the outset that far from opposing this provision, as a great majority of those who have spoken about it today appear to do, I support it although, as I shall shortly explain, I could accept a slight modification to it, a modest dilution of its effect. Instead of the person seeking compensation having to prove his innocence beyond reasonable doubt—that is the criminal standard of proof for guilt to be established—it may be thought preferable that he need establish innocence only on the balance of probabilities. But I believe that establish his innocence he must, not of course, to have his conviction set aside and to go free, but to secure monetary compensation.

Let me explain why I support the proposal and believe that, contrary to the suggestion of the Joint Committee on Human Rights that this offends against the human rights convention, it is entirely compatible with the presumption of innocence. I should perhaps say at this stage that in the Supreme Court case of Adams, which was decided two or three years ago and has already been mentioned more than once today, I was in the minority of four to five—we sat as a court of nine justices. Clause 151 appears designed, essentially, to give effect to our minority view. I am not concerned here simply to refight old battles, but rather to support a provision which to my mind would not only restore clarity and simplicity in this area but reduce the number of occasions when large sums of money—sometimes they are very large indeed, up to £1 million—would otherwise fall to be paid out to those who, albeit that their criminal convictions have been overturned as unsafe, are nevertheless highly likely in fact to have committed the offences for which they are now seeking compensation.

My concern thus appears to go rather wider than what the Minister, in opening this debate, suggested is the Government’s concern to clarify the law and reduce the number of misconceived claims and the expense of contesting them. I readily acknowledge that there can be few ordeals in life more awful than being wrongfully convicted and imprisoned, sometimes for years, for a crime which one has not committed. At first blush, one’s instinct is to say that anyone in that position ought without more ado to be entitled to compensation for his ordeal and that that should be so in all cases in which the initial conviction is overturned. That is, however, very far from the position, and I think that nobody is suggesting that that should be the position. Certainly it is not necessary, as the underlying section here, the compensation section in the Criminal Justice Act 1988, seeks to do, to give effect to our international obligations under the International Covenant on Civil and Political Rights.

On the contrary, it must be recognised that the whole compensation scheme applies only to a narrow and exceptional group of cases in which convictions are quashed. There is no right to compensation unless the appeal was brought out of time. Sometimes that is a matter of chance—for example, if a lawyer has missed the time limit. No right to compensation arises unless the appeal succeeds on the ground of a new or newly discovered fact, for the previous nondisclosure of which the appellant is in no way responsible. No right to compensation exists unless the new fact shows beyond reasonable doubt that there has been a miscarriage of justice. As the international covenant provides, the claimant has to show conclusively that there has been a miscarriage of justice.

No one suggests that all those whose convictions are overturned on a late appeal because of new facts have by definition suffered a miscarriage of justice— far from it. As stated in the Explanatory Notes to this Bill, what this new clause does is to restore the position generally thought to have been established some while back whereby the claimant had to show that he was clearly innocent. Classically that would be the case where, for example, new DNA techniques showed that he could not have been guilty or where, as sometimes happens, another person eventually admits or is proved to have committed the crime in question.

In the Adams case, five members of the court, however, decided that the case would also qualify as a miscarriage of justice where the new fact,

“so undermines the evidence against the defendant that no conviction could possibly be based upon it”.

This test was later redefined in the Divisional Court as:

“Has the claimant established, beyond reasonable doubt, that no reasonable jury properly directed as to the law could convict on the evidence now to be considered?”.

The fact that the majority’s test in Adams needed later clarification and redefinition is perhaps an answer to the question posed by the noble Lord, Lord Borrie, as to why any further clarity is required.

The problem with the test, even as reformulated, is that all too easily it can require compensation to be paid to those in fact guilty of the offence. I will illustrate this by reference to a case called Maxwell which we had in the Supreme Court in a rather different context. Two brothers had been jointly convicted of two robberies and a murder. They had been targeting a number of elderly, vulnerable victims. The conviction was largely based on the evidence of a supergrass although it was generally supported by a jigsaw of other evidence. Some 12 years later their convictions, everybody agreed, had to be set aside because it became apparent that the police, behaving disgracefully, had secured the supergrass’s continuing co-operation in the prosecution by conferring on him a whole raft of benefits, including taking him to a local brothel.

As it happened, one of the brothers had, in the years after his conviction, admitted in a series of interviews that they had been guilty, probably in the hope that his case for parole would be improved. On the basis of those confessions, in his particular case a retrial was ordered at which he eventually pleaded guilty, but no such order for retrial could be made in the case of the brother who had remained silent, and he simply went free. However, under the test laid down by the majority in Adams, and since reformulated, I can see no answer to a compensation claim by that silent but surely guilty brother.

As to the Joint Committee’s suggestion that the proposed new test is, on its face, incompatible with the convention, I respectfully disagree. There is no time to discuss this in depth, but having read and reread the case of a recent Strasbourg decision on which that opinion was based, I simply disagree. On the Joint Committee’s approach, the lesser test also would offend the convention. The committee’s view really proves too much. Logically the only approach that would be compatible with the presumption of innocence on that approach would be to compensate everybody whose convictions are quashed on a late appeal because of new facts, and, plainly, Strasbourg does not require that.

On whatever test is applied, some people—who I accept are truly innocent—will go uncompensated. As to the possible modification of the clause to require proof of innocence only on the balance of probabilities, I doubt whether that would be likely to affect the outcome of many cases. Logically, the test proposed of “beyond reasonable doubt” is a better implementation of the convention requirement to show the miscarriage conclusively, although cosmetically it may be preferable.

Finally, it is true, as the Joint Committee noted, that comparatively small savings will be achieved by imposing this new test. However, the principle of the thing concerns me. It is, quite simply, wrong to have a test by which the taxpayer must compensate those whom the Secretary of State reasonably believes are, after all, probably guilty. To free those whose conviction is judged unsafe is one thing, but to compensate them is quite another.