Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Tuesday 11th March 2014 Lords Chamber

Moved by

[Lord Faulks]

That this House do not insist on its Amendment 112 and do agree with the Commons in their Amendment 112A in lieu.

112A: Page 121, line 24, leave out “was innocent of” and insert “did not commit”

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[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the House will recall that Amendment 112 changed the definition of a miscarriage of justice for the purposes of paying compensation. At the heart of all our discussions lies the question: what is a miscarriage of justice? It is a strong term, which cries out for proper definition. There is general agreement, including from the Grand Chamber of the European Court of Human Rights in Strasbourg, that it is more than a simple acquittal. The fact that someone was tried and the evidence proved insufficient to convince a jury of their guilt does not mean that a miscarriage of justice took place. Nor do the Government believe that someone whose conviction was overturned because changes to the evidence against them, such as developments in expert knowledge, made that conviction unsafe has necessarily suffered a miscarriage of justice. Although following the quashing of a conviction someone will be presumed innocent, there may be a retrial on the basis of the remaining evidence, at which there is the potential for a new conviction. Justice cannot be said, in these cases, to have miscarried.

The Government firmly believe that a miscarriage of justice can be said to have occurred where someone who was innocent was convicted. The question therefore becomes: how do you know that happened? In our previous debates, some noble Lords have asked how applicants for compensation can be expected, sometimes years after their wrongful conviction, to prove their innocence. The answer is that they will not. In all cases, the Court of Appeal will have already considered a new fact—the new fact that led to the quashing of the conviction—and this new fact will exonerate those who are truly innocent. These are the people who have truly suffered a miscarriage of justice: people who were convicted because the fact which now exonerates them was unknown or unrecognised, be it the proof that they were somewhere else, the DNA that convicts a different perpetrator or the evidence that the offence simply did not take place. It is the nature of the new fact that demonstrates innocence, and the applicant for compensation does not need to provide any further evidence to prove themselves eligible for compensation within the statutory test.

The Government remain firmly of the view that the definition of a miscarriage of justice, which was inserted by Amendment 112 in your Lordships’ House, does not provide the necessary clarity. It is similar, although not identical, to the wording used by the noble and learned Lord, Lord Phillips, in the Supreme Court’s judgment in Adams and, as he said:

“This test will not guarantee that all those who are entitled to compensation are in fact innocent”.

We believe that the test should guarantee exactly that, because we believe that only those who are shown not to have committed the offence for which they were convicted have truly suffered a miscarriage of justice and deserve recognition and recompense for that. However, I am sure that none of your Lordships wants those who are in fact guilty to receive compensation.

The amendment adopted by your Lordships on Report would have required the new fact to show,

“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.

Careful reading of this proposed definition makes it clear how difficult a burden this places on the Secretary of State. It would require him, when considering an application for compensation, to look not just at the new fact but at the whole of the evidence, and to decide whether there is any possibility that a conviction might result. The aim of the Supreme Court in the Adams judgment was both clarity and fairness but, with all due respect, I suggest that it did not in fact achieve either. Rather, it required an adjudication from the Secretary of State considerably more complex than that which we are now proposing.

During the debate that took place on the previous occasion when this matter was before your Lordships’ House, the noble Lord, Lord Pannick, indicated that it was very unsatisfactory that the Secretary of State should be asked to pronounce on guilt or innocence. I am not sure that, on that occasion, I gave a sufficient response. Let me do so now.

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There is another factor: last week, to her great credit, the Home Secretary established an inquiry into the use of undercover agents by the police. Who knows at this time what doubts might be cast on convictions procured by such means? What miscarriages of justice might now come to light? Now, I submit, is emphatically not the time to dilute the careful, moderate position established by the Supreme Court in the Adams case. On the contrary, it is time to affirm it and I hope the House will do so.

[Lord Faulks]

My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.

I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.

The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.

The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.

We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.

The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.

[Lord Pannick]

My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:

“I do sympathise with Lord Brown’s palpable sense of outrage … 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”.

A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.

As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.

I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.

Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.