Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Tuesday 11th March 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.

For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded however, as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.

I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.

Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds. Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.

I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts of which only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently true as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.

My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this Bill would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting his case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.

If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.

[Lord Hope of Craighead (CB)]

My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.

I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.

In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.

Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.