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My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.
We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.
Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.
What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.
Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.
It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.
The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals.
The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.
In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?
There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.
How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.