§ 181 Before Clause 128, insert the following new Clause—
§ —(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
§ (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
§ (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
§ (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
§ (5) In this section "reversed" shall be construed as referreing to a conviction having been quashed—
- (a) on an appeal out of time; or
- (b) on a reference —
- (i) under section 17 of the Criminal Appeal Act 1968;
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 181. I should also like to speak to Amendments Nos. 348 and 426. I pay tribute to the noble and learned Lord, Lord Elwyn-Jones, who was assisted by the noble Lords, Lord Mishcon, Lord Hutchinson of Lullington and Lord Harris of Greenwich, who persuaded us in Committee that we should use the opportunity which is presented to give statutory effect to the United Kingdom's obligations under Article 14, paragraph 6, of the International Covenant on Civil and Political Rights. Your Lordships will know that we already meet those international obligations in practice. However, successive governments have acknowledged that legislation would be necessary to meet the letter as well as the spirit of the covenant.
Perhaps I might assist your Lordships by touching briefly on some of the main features of the proposed statutory scheme. The meat, if one may so describe it, is in subsection (1) of the new clause. The wording follows quite closely the wording of Article 14(6) of the international covenant. The effect is that compensation is payable by law where the conviction has been reversed outside the normal judicial process, where it has been shown beyond reasonable doubt that there has been a miscarriage of justice, where the miscarriage of justice is revealed by the emergence of a new or newly discovered fact and where the convicted person was not responsible for the new fact not emerging in time to be taken into account by the normal judicial process.
While it is for the Secretary of State to determine an applicant's entitlement to compensation, the 1631 amount of an award will be determined by an independent assessor. That is also the arrangement under the present non-statutory scheme. As at present, the assessor will be asked to make assessments in accordance with the general principles applied in the assessment of damages in civil cases.
The new schedule deals with matters concerning the appointment and qualifications of assessors. They will be practising lawyers or members of the Criminal Injuries Compensation Board or past or present holders of judicial office. Your Lordships will recall that the present non-statutory arrangements described in the statement made by the Home Secretary on 29th November 1985 go somewhat wider than our obligations under international covenant. In particular, my right honourable friend is prepared to pay compensation on a discretionary basis in cases where someone has spent a period in custody following a wrongful conviction or charge as a result of a serious default on the part of a member of a police force or some other public authority or in some other exceptional circumstances.
My right honourable friend will continue to exercise his discretion as to whether compensation should be awarded in such cases. I hope that your Lordships will approve these amendments.
§ Moved, that the House do agree with the Commons in their Amendment No. 181.—(Earl Ferrers.)
§ AS AN AMENDMENT TO COMMONS AMENDMENT NO. 181
§ 181A Subsection (1), line 4, leave out ("beyond reasonable doubt").
§ Lord Elwyn-Jones
My Lords, I first express our gratitude from these Benches to the noble Earl for having tabled this important and significant Amendment No. 181 which, as he said, embodies what has been urged and is now given proper place in our legislation.
The process of the need to remedy miscarriages of justice is not an easy one, but it is essential that the legal system should provide for it. What is significant now is that we are moving from an ex gratia basis of compensation to statutory provision for it to be given.
Coming to my Amendment No. 181A, your Lordships will observe that subsection (1) of the new clause reads:Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently this conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice".and so on. I submit—and this is the purpose of my amendment—that we should leave out the words "beyond reasonable doubt". They are unnecessary and impose too high a standard.
It is significant that in the statement to which the noble Earl referred— namely, that of the Home Secretary on 29th November 1985—there is no equivalent to the insertion of the requirement of' a proof, so to speak, that it is "beyond reasonable doubt". The words that we submit are perfectly adequate to meet the situation are,shows that there has been a miscarriage of justice".1632 That phrase is definite and clear enough to be properly interpreted. We do not see the need to include "beyond reasonable doubt". Those words will add a new factor of difficulty when the victims of miscarriages of justice seek a remedy. Therefore, I hope it will be agreed that the words are unnecessary and damaging to the purpose of the new clause. I beg to move.
§ Lord Hutchinson of Lullington
My Lords, I support the noble and learned Lord, Lord Elwyn-Jones, in his amendment. I should like to put a question to the noble Earl on this matter of miscarriage of justice which is of some importance.
Compensation is to be paid for a miscarriage of justice and the conviction of the person has to be reversed or the accused pardoned on the ground that the new fact reveals that miscarriage of justice. Further, it is the Secretary of State who determines whether the person has the right, and it is his decision alone. Therefore, it is of crucial importance that we should understand what constitutes a miscarriage of justice.
The important issue is this. What appeared, and is referred to in the Devlin Report— I had the honour to be a member of the committee which made that report—was that when a matter of this kind, a new fact, came to light and was considered by the Home Office it could either refer the matter to the Court of Appeal or it could deal with the matter itself and recommend a pardon. The criterion was different in the two cases. When a new fact goes to the Court of Appeal it is considered and if it arouses a lurking doubt as to the satisfactory nature of the conviction it allows the appeal. If the Home Office looks at the matter it has to be satisfied of the person's innocence before a pardon can be advised. Therefore, there are two different views on what amounts to a miscarriage of justice.
It is a crucial point. Let us suppose a new fact arises. It is brought to the attention of the Secretary of State and considered by him. The Secretary of State says to himself, "Well, if that fact had been available on appeal there is no question in my mind but that the Court of Appeal would have had a lurking doubt and would have quashed the conviction". It does not mean that the person is innocent. It means that there is a miscarriage of justice because the person was convicted on inadequate evidence.
Alternatively, the Secretary of State may look at the case and say, "The Court of Appeal might have done that but I am not satisfied that this person is innocent and therefore there has not been a miscarriage of justice". Those are two very different approaches and it seems to me essential that if compensation depends on the establishment of a miscarriage of justice, it should be absolutely clear what view the Secretary of State takes as to what amounts to such a miscarriage.
§ Lord Hailsham of Saint Marylebone
My Lords, the only course for the House is either to accept the situation as the Commons have left it or to accept the view which the noble and learned Lord, Lord Elwyn-Jones, has put forward. I am not wedded to either alternative; but there is something to be said for the view expressed by the noble and learned Lord, Lord Elwyn-Jones.
1633 We can forget about the action of a Court of Appeal because it is not before the House as to whether that part of the amendment should be accepted. That is not a matter on which this House, in this debate, can express an opinion. If the Secretary of State has recommended a pardon because he happens to be satisfied that a person is innocent I cannot see what is added by insisting that the Secretary of State should have to pay compensation only where the innocence of the victim of the miscarriage of justice has been proved "beyond reasonable doubt". We would be in a ludicrous position if the Secretary of State is satisfied the person was innocent but not satisfied that there was no reasonable doubt about it. There is a great deal to be said for the argument of the noble and learned Lord, Lord Elwyn-Jones, strictly as a matter of common sense and law.
§ Lord Monson
My Lords, I too welcome the admirable Amendment No. 181; but I believe that it would be even more perfect if modified in the way suggested by the noble and learned Lord, Lord Elwyn-Jones.
§ Lord Renton
My Lords, I see a difficulty. If the words "beyond reasonable doubt" are not included it would mean that the Secretary of State would merely have to consider whether prima facie, the new fact disclosed a miscarriage of justice. I believe that will create an unsatisfactory situation. Therefore, in spite of what has been said, I confess that I would prefer the words "beyond reasonable doubt" to remain.
My Lords, I am grateful to my noble friend Lord Renton for agreeing that those words should remain. I would say to the noble and learned Lord, Lord Elwyn-Jones, that I do not think there is anything sinister about them. The matter with which the clause deals is that of paying compensation to someone who is shown to have been the victim of a miscarriage of justice by reason of the later emergence of a new fact. It seems to be right and reasonable that the consequence of the new fact should be demonstrated "beyond reasonable doubt". That is the measure that the criminal courts will normally take.
I point out that the terms of the clause are not as rigorous as the article of the international covenant to which it gives effect. We undertook to recognise this in statute. The article provides that the new fact which has emerged should show "conclusively" that there has been a miscarriage of justice. We felt it right to follow our own usage in this respect despite the fact that the words are less strict. I hope that your Lordships will agree to keep those words. By removing the words "beyond reasonable doubt" we remove any standard of proof. The international convenant says that it must be proved conclusively; in other words beyond all doubt. We arc saying that it should be proved beyond reasonable doubt.
The amendment tabled by the noble and learned Lord says that there should be no standard of proof at all. I hope that he will agree that the words "beyond reasonable doubt" are reasonable. He referred to my right honourable friend's statement when he said that he was satisfied that it resulted from serious default. There must always be some criterion 1634 for a statutory scheme and we thought that "beyond reasonable doubt" was a sensible standard of proof. The noble Lord, Lord Hutchinson, asked a specific question. The normal course is to refer cases to the Court of Appeal and to regard its view as binding. The Home Secretary has a residual discretion which he can apply where the new matters are ones that could not be considered by the Court of Appeal. I hope that, in view of those remarks, the noble and learned Lord will agree that the words "beyond reasonable doubt" are the proper ones.
§ 1.30 p.m.
§ Lord Elwyn-Jones
My Lords, I am disappointed in what has been said by the noble Earl. We are dealing with a provision which involves certain steps to be taken before compensation is paid where a person has been convicted. Subsequently, his conviction may be reversed by a court or he may be pardoned by the Secretary of State on the ground that a new or newly discovered fact shows that there has been a miscarriage of justice. If all that is established, that is the very basis upon which compensation for that miscarriage of justice is to be made. To add the factor of the requirement of proof beyond resonable doubt where the court that reversed the decision will have considered all the relevant factors, and the Secretary of State, when he has been responsible for a pardon, will have considered all relevant matters to a degree of establishing with confidence that a miscarriage of justice should be remedied, introduces an unhappy and somewhat dangerous withdrawal from a responsible position taken where there has been a miscarriage of justice and where there should be compensation.
If those words are retained it will damage the generosity—I use the word "generosity" but I prefer the word "justice"—of what is proposed. I doubt very much whether it adds to the problems that a public authority has for the protection of public funds. If the words "beyond reasonable doubt" are retained, they will diminish the value of this crucial concession in the interest of justice. I again urge the noble Earl to have another thought about this. I wonder whether it is too late for me to press that matter now; otherwise I shall have to take the opinion of the House.
My Lords, I am happy to think about this for a long while, but the fact is that we can only make a decision now. The noble and learned Lord asks me to think about it and I presume he asks whether we accept the amendment. I cannot tell him that we accept it. I have tried to explain to him that the words in the article are considerably stronger. They say that the matter has to be proved conclusively and that there is no doubt. All we are saying is that it should be proved beyond reasonable doubt.
The noble and learned Lord is a reasonable person and I am sure that those words are an appropriate modification. He is suggesting words which provide no standard of proof at all. I do not believe that one can ever say, "Such and such is bound to be right and I know it is right". All one can say is that it is so beyond reasonable doubt. I hope the noble and learned Lord will agree that that is the correct form of words.
§ Lord Elwyn-Jones
My Lords, I do not wish to repeat what I said before. I am delighted to have the support of the noble and learned Lord, Lord Hailsham, on this matter. However, it is an important point of principle and I must ask for the opinion of the House.
§ 1.36 p.m.
§ On Question, Whether the said amendment (No. 181A) shall be agreed to?
§ Their Lordships divided: Contents, 32; Not-Contents, 53.
|DIVISION NO. 2|
|Ardwick, L.||Jenkins of Putney, L.|
|Broadbridge, L.||Kilbracken, L.|
|Carmichael of Kelvingrove, L.||Longford, E.|
|Cocks of Hartcliffe, L.||Monson, L.|
|Donoughue, L.||Morton of Shuna, L.|
|Dormand of Easington, L.||Mountevans, L.|
|Elwyn-Jones, L.||Nicol, B.|
|Ewart-Biggs, B.||Ponsonby of Shulbrede, L.[Teller.]|
|Falkland, V.||Shackleton, L.|
|Fitt, L.||Slallard, L.|
|Gallacher, L. [Teller.]||Strabolgi, L.|
|Harris of Greenwich, L.||Turner of Camden, B.|
|Hooson, L.||Underhill, L.|
|Houghton of Sowerby, L.||White, B.|
|Hutchinson of Lullington, L.||Williams of Elvel, L.|
|Irvine of Lairg, L.|
|Arran, E.||Long, V. [Teller]|
|Auckland, L.||Lyell, L.|
|Balfour, E.||Mackay of Clashfern, L.|
|Beaverbrook, L.||Macleod of Borve, B.|
|Belhaven and Stenton, L.||Marley, L.|
|Belstead, L.||Marsh, L.|
|Bethell, L.||Mersey, V.|
|Blake, L.||Munster, E.|
|Blyth, L.||Murton of Lindisfarne, L.|
|Borthwick, L.||Napier and Ettrick, L.|
|Brentford, V.||Newall, L.|
|Caithness, E.||Norrie, L.|
|Carnock, L.||O'Brien of Lothbury, L.|
|Coleraine, L.||Oxfuird, V.|
|Colwyn, L.||Peyton of Yeovil, L.|
|Craigavon, V.||Rankeillour, L.|
|Cullen of Ashbourne, L.||Renton, L.|
|Denham, L. [Teller.]||Rippon of Hexham, L.|
|Effingham, E.||Strathclyde, L.|
|Faithfull, B.||Swinfen, L.|
|Ferrers, E.||Terrington, L.|
|Fraser of Kilmorack, L.||Teviot, L.|
|Gainford, L.||Trumpington, B.|
|Glenarthur, L.||Windlesham, L.|
|Hooper, B.||Wise, L.|
|Keyes. L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment to Commons amendment disgreed to accordingly.
§ 1.44 p.m.
§ AS AN AMENDMENT TO COMMONS AMENDMENT No.181
181B Subsection (1) at end insert—
("(1A) The Secretary of State shall also pay compensation under this section—
§ Lord Elwyn-Jones
My Lords, this amendment to the new clause proposes to add provision by way of compensation for matters which were expressly included in the Written Answer of the Home Secretary of 29th November 1985 when the decision was made to pay compensation to persons who had been wrongly convicted of criminal offences. The Written Answer is reported at col. 691 of Hansard for 29th November 1985. The Home Secretary said:In future I shall be prepared to pay compensation to all such persons where this is required by our international obligations. The international covenant on civil and political rights [article 14.61 provides that:'When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him'.I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority".The three items contained in my amendment are expressly provided for as a basis for compensation in the statement of the Home Secretary. My amendment reads:The Secretary of State shall also pay compensation under this section—(i) where he is satisfied that punishment has resulted from a serious default on the part of a member of a police force or of some other public authority"—those words are taken from the statement of the Home Secretary(ii) where the international obligations of the United Kingdom require the payment of compensation for a miscarriage of justice;"—that is covered by the early part of the statement which I read—(iii) in any other circumstances where, in his opinion, a miscarriage of justice has occurred (whether or not the conviction has been reversed)".That also emerges from the convenant itself and from the approval of it by the Home Secretary. I hope accordingly that there will be a faithful adherence to what was contemplated in the initial statement on 29th November 1985. These are matters where it is reasonable for the state, for the Secretary of State and for the Government to accept responsibility for miscarriages of justices in the circumstances set out in those three provisions included in the amendment. I beg to move.
§ Lord Hutchinson of Lullington
My Lords, I should like to support the amendment. The Government are always so reluctant to establish fundamental rights and seem prepared to do so only when driven to it by the requirements of international or European conventions. Surely a miscarriage of justice is often even more important than a criminal injury. Surely if ever statutory compensation was justified, it is for a miscarriage of justice. Here is a real opportunity to follow on from the minimal demand of the international convention and put what is at the moment a question of an ex gratia payment on a statutory basis.
§ Lord Renton
My Lords, we are invited to make a considerable addition to the Commons amendment which we have already welcomed; namely, the new clause in Amendment No. 181. Although I appreciate the desires of the noble and learned Lord, I seriously wonder whether the amendment he has tabled is either necessary or altogether sound in the way in which it is expressed. It starts off by saying, quite naturally and properly, that:The Secretary of State shall…pay compensation".There is no discretion there; and that is clearly what the noble and learned Lord has in mind, and is in keeping with the terms of the new clause itself which we have already discussed. It then goes on to introduce a subjective test which is that the Secretary of State, although he has no discretion, must satisfy himself that the punishment has resulted from "a serious default". I must say that I should have preferred to see the provision read:Where punishment has beyond reasonable doubt resulted from a serious default on the part of a member of the police force or of some other public authority".Is it really necessary for us to legislate on those terms? Because if there had been a serious default on the part of a member of the police force, it would have come to light. The Secretary of State would have had it drawn to his attention—probably in Parliament— and I therefore doubt the need for us to legislate on that point.
As regards the international obligations which "require the payment", that is most likely to be an obligation imposed by our membership of the European Economic Community. We find increasingly that obligations imposed in that way enter into our law without much delay or doubt. Therefore I also doubt the need for that provision.
I turn now to the last provision, which reads:In any other circumstances where in his opinion, a miscarriage of justice has occurred".Again, we have the words "in his opinion". That again introduces a subjective test where the Secretary of State has no discretion. I should have thought that if we are to have this provision—which I doubt —the words "beyond reasonable doubt" would be better than "in his opinion". But taking it in the broad, I do not find this amendment to the Commons amendment sufficiently satisfactory or convincing to suggest that your Lordships should be advised to accept it.
§ Lord Hailsham of Saint Marylebone
My Lords, I am hound to say that on this occasion, although I gave my qualified blessing to the noble and learned Lord on the last amendment, I do not think that this one is as satisfactory. I can understand the case for it, although I think I should not wholly agree—partly on the grounds just stated. If it was proposed as an alternative to the Commons amendment, I think that there would be a case to be argued, although I could not agree with it all. However, I do not think that it can stand with the Commons amendment as an addition to it. On the contrary, it will lead to considerable confusion because the Commons amendment really does or does not fulfil our international obligations—and the House, without my entire approval, has decided that it does on the advice of my noble friend Lord Ferrers.
1638 The amendment adds another series of criteria which are basically inconsistent with the one which the Commons has suggested, not as an alternative but as an addition. It would lead to great confusion if it were passed.
My Lords, I am especially grateful to my noble and learned friend Lord Hailsham for his remarks and to know that at least on this amendment he has returned to the fold. I agree with my noble friend Lord Renton that this amendment will in fact be a considerable addition to the Bill.
The commitment to which we have agreed is to enact in our law the provisions of paragraph 6 of Article 14 of the International Covenant on Civil and Political Rights. The noble and learned Lord's amendmment goes far beyond this. We stand by that commitment to incorporate that international covenant but other elements of the existing scheme, set out in my right honourable friend the Home Secretary's Statement of 29th November 1985, would be difficult to define in statute. We can see no particular advantage in seeking to do so, particularly on the basis which the noble and learned Lord has proposed. The cases which would fall outside the terms of that article are almost by definition exceptional, and it would be almost impossible to foresee all possible exceptional circumstances. My right honourable friend is prepared to be flexible in looking at cases presented to him, and we should not lose that flexibility. We have already made it clear that the arrangements set out in the statement to which I have referred will be retained. But attempting to define them, or parts of them, in statute would reduce the present scope for flexibility, or be liable to create difficulties of interpretation. I certainly see that last point as presenting particular difficulty in the context of the amendment which the noble and learned Lord suggests.
The first part of the amendment, dealing with "serious default" is a specific part of my right honourable friend's Statement. The difficulties which are raised by attempting to make statutory provision are made apparent by the wording the noble and learned Lord has chosen. In the Statement, the question must be whether or not my right honourable friend is satisfied that a wrongful conviction or charge, not punishment, has resulted from serious default. In cases where there has been a conviction, we would expect that that conviction would have been reversed, either through appeal, or through grant of a free pardon, before the issue of compensation, and the question as to whether or not there had been serious default, was considered. In the absence of definition of the terms and provisions on which this particular part of the amendment relies, I do not think that a hasty statutory provision is to be recommended as a way forward. As I have indicated, my right honourable friend considers cases which might fall under this heading, as he considers any other application for compensation, carefully on their merits, and with flexibility. That approach is not something we should hastily lose.
The second part of the noble and learned Lord's amendment, set out in the paragraph at item (ii) go far beyond the matters with which Clause 131 is concerned. That clause is concerned with making statutory provision for a certain aspect of our international obligations. Moreover, it is specifically 1639 concerned with miscarriage of justice. This part of the amendment would provide a much more general and wide-ranging provision for compensation, falling far outside the more specific and necessary concerns related to miscarriages of justice. The words "international obligations" are nowhere defined in the amendment tabled by the noble and learned Lord. I do not believe it right to commend such a provision in the context of the specific matter of compensation for miscarriages of justice.
The third part of the amendment moved by the noble and learned Lord, which is set out under subparagraph (iii), is in some senses even wider. It would place a responsibility on my right honourable friend to decide for himself whether there had been a miscarriage of justice. As the existing provisions of Clause 131 make clear, and as has been made clear elsewhere on other occasions in the context of considering my right honourable friend's powers to intervene in criminal convictions, it is right and proper, and in accordance with our constitutional and judicial principles, that such matters are decided by the courts. It should not be a matter for my right honourable friend.
It is difficult to envisage a case where a conviction had not been reversed by the courts, or in exceptional circumstances by the grant of a free pardon, where my right honourable friend could possibly feel justified in paying compensation. It is too wide a power, affecting the principles upon which our judicial system operates, and too wide a power properly to devolve upon a Secretary of State. I cannot commend that part of the amendment, nor indeed the wide terms of the amendment at large, to your Lordships.
We have stood by our undertaking to make statutory provisions regarding the international obligations set out in paragraph 6 of Article 14 of the International Covenant. It would not be wise or appropriate so hastily and widely to extend to my right honourable friend and his successors the power to pay compensation from public funds.
§ 2 p.m.
§ Lord Elwyn-Jones
My Lords, it would be churlish not to recognise the importance and value of the broad concession made by the Government in Amendment No. 181. The language that I have inserted in my amendment is taken from the Home Secretary's Statement, in particular, the phrase "where he is satisfied", which the noble Lord, Lord Renton, found so unattractive. It may well be that that further elaboration must await another day.
The major victory, if I may put it that way, of the concession on the concept of compensation for miscarriages of justice is now embodied in the Criminal Justice Bill. In the circumstances I am afraid that for the time being—I am not giving any undertakings for the future—we shall have to be content with what mercy has already been provided for us. I beg leave to withdraw the amendment.
§ Amendment to Commons amendment, by leave, withdrawn.
§ On Question, Commons Amendment No. 181 agreed to.