Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 22nd January 2014 Lords Chamber

So I come to the second reason for preferring this amendment. I suggest, as I did in Adams, that Section 133, and Article 14.6 of the international covenant to which it gives effect, has two implicit objectives. The primary objective is that an applicant who has been convicted when he was in fact innocent should be compensated for the consequences of the wrongful conviction. The second, and subsidiary, objective is that an applicant whose conviction has been quashed but who in fact committed the offence charged should not be compensated. No test will achieve both these objects in every case, but to require an applicant who has succeeded by fresh evidence in demolishing the case upon which he was convicted to go further and prove his innocence beyond reasonable doubt is surely to stack the cards too heavily against him. This amendment strikes the right balance and it is for that reason that I support it.

[Lord Hope of Craighead (CB)]

I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.

There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.

The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,

“shows conclusively that there has been a miscarriage of justice”,

the person should,

“be compensated according to law”.

There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.

I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,

“to prove innocence … is alien to our system of justice”.

Our methods do,

“not provide a forum in which”

that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.

There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.

Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.

[Baroness Hamwee (LD)]

My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.

As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.