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Anti-social Behaviour, Crime and Policing Bill — Commons Amendment

Part of the debate – in the House of Lords at 4:55 pm on 11th March 2014.

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Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice 4:55 pm, 11th March 2014

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.

The applicant will have to satisfy the Secretary of State that he is eligible for compensation within the meaning of the statutory test. If your Lordships accept the government amendment, the word “innocence” is removed altogether from his consideration of the application. Let me make it perfectly clear that the difference between what we now suggest should be part of the Bill and what was originally there is only a question of words. It would not result in a different determination in any one case. But words matter in this context because there is a deep, visceral unease about anything that may be said to run contrary to the presumption of innocence—hence the changing of the words.

However, the question—I revert to the Secretary of State’s function—is what he will use to decide whether an applicant is eligible. That is the question. The Court of Appeal will have provided a detailed judgment explaining why, so long after a conviction, a new fact has enabled it to conclude that the conviction should be quashed. In my experience of reading the decisions of the Court of Appeal Criminal Division, the basis on which a conviction is overturned is always made perfectly clear. The Secretary of State will simply look at that judgment and be able to decide, in accordance with a straightforward test that we are proposing by this amendment, whether an applicant is entitled to compensation. It is clear that the Court of Appeal will have set out in detail why it has come to that conclusion and whether it fits the clear definition that we suggest is appropriate.

The test proposed in your Lordships’ House on Report is also highly ambiguous. What one person believes is evidence sufficient possibly to bring about a conviction, another may argue could never have had such a result. The effect of this would undoubtedly lead applicants to contest decisions denying them compensation. Applicants denied compensation following the Adams judgment have, in some cases, spent years attempting unsuccessfully to get those decisions overturned by the courts. Indeed, as recently as 27 February, the Court of Appeal rejected three further cases, so the effect of the test is clear to this extent: it will inform more litigation. We do not believe this is fair, either on applicants or on the taxpayer, who often funds both sides in this fruitless litigation.

Our objections to Amendment 112 are firmly based on points of principle; this is not primarily about saving money. That said, here as elsewhere, we must deliver value for money for the taxpayer and, accordingly, it is in no one’s interests for us to be spending at least £50,000 contesting each decision to refuse compensation. That, by the way, is an estimate of the Government’s average costs per case. The taxpayer also usually funds via legal aid the unsuccessful applicant’s costs of litigation, which, in many cases, are considerably higher than the Government’s. The total cost of each unsuccessful judicial review can, therefore, run into hundreds of thousands of pounds. If we maintain an ambiguous definition, we expect the flow of judicial reviews to continue, however many times the court ultimately concludes that the Secretary of State’s interpretation was the correct one. We believe that a simpler test, which focuses only on the new fact and what that new fact shows, will make it easier for all concerned, while ensuring that those who have truly suffered a miscarriage of justice will be quickly compensated for it. That said, we have listened to the concerns that noble Lords raised about how the clause was originally drafted.

The rationale for the presumption of innocence is that it is better that 99 guilty men go free than that one innocent man is convicted. That stems from our abhorrence of the idea of an innocent man losing his liberty. Here we are concerned not with liberty but with compensation or, in other words, money, so the considerations are different.

We recognise the difficulty around the use of the term “innocent”. The European Court of Human Rights has suggested that the presumption of innocence is engaged when considering whether a miscarriage of justice has taken place. All those who have not been convicted, or whose conviction has been quashed, are presumed innocent. To avoid any implication that this is not respected, or that the Secretary of State intends to adjudicate on this question, Amendment 112A uses different language. The issue now is not whether a person is considered innocent or guilty. The issue is whether a miscarriage of justice took place when the applicant was first convicted. This will be true only if the applicant did not commit the offence, if that is what the new fact shows. That is what Amendment 112A would achieve.

Your Lordships’ House has quite properly asked the House of Commons to examine this issue again. It has now done so and has clearly resolved both to reject Amendment 112 and to agree the government amendment in lieu. Now that the elected House has reaffirmed its view on this matter, I urge your Lordships not to insist on their amendment, to reject Motion A1 and to let this Bill now pass. I beg to move.

Motion A1

Moved by Lord Pannick

As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”