Anti-social Behaviour, Crime and Policing Bill

Lord Pannick Excerpts

Tuesday 11th March 2014 Lords Chamber

Moved by

[Lord Pannick]

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

[Lord Pannick (CB)]

My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.

We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.

I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.

I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.

The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.

The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.

Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,

“right in principle that compensation should be payable”.

My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.

--- Later in debate ---

[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.