Playing fast and loose

Jeremy BeechamJeremy Beecham on Coalition plans to deny compensation to miscarriage of justice victims

The 200 page, 161 clause Anti-Social Behaviour, Crime and Policing Bill with its nine schedules is not so much a curate’s egg as a curate’s omelette. And one of the least appealing ingredients of this omelette relates to compensation for miscarriages of justice. 

For 25 years it has been possible to claim compensation when new facts emerge which lead to the quashing of a conviction. There have been some celebrated cases, including those that Helena Kennedy spoke of at the bill’s Second Reading. These concerned young mothers wrongly convicted of causing the death of their children and one woman who served eleven years in prison for causing two deaths as the result of arson.

Under the existing procedure, the claimant has only to demonstrate that the new evidence has made the conviction unsafe and that the Court has overturned it; rather than prove his or her innocence. That mirrors the basic principle of English criminal law that the accused is presumed innocent unless guilt is proved beyond reasonable doubt. Now, in an effort reminiscent of their attempts to secure support for secret courts (by exaggerating the extent of the problem), Ministers are effectively proposing to reverse the burden of proof. Their aim is to avoid paying compensation to those they regard as succeeding on a technicality. 

During the Lords debates over secret courts, Peers were regaled with dire warnings of a tsunami of claims that would lead to millions of pounds being paid to terrorists. For these new proposals, the estimated annual saving is, according to the Impact Assessment, around £100,000 per year. This reflects the fact that successful claims are few and far between, just two a year since 2010.

For the purpose of dealing with a virtually non-existent problem, the government is introducing via the back door the Scottish verdict of ‘Not Proven’ – something that could also be described as “the case against you hasn’t been proved but we know you’re really guilty”. Given the obvious difficulties of proving a negative, this is to raise the bar much too high. There will be cases where a claimant may well be unable, even after a conviction has been deemed unsafe and quashed, to prove beyond reasonable doubt that he or she was innocent. 

Ministers claim that decisions under the current law have led to uncertainty. What they really mean is that they don’t like the latest decision that makes it clear that the test should be whether “no reasonable jury or magistrate properly directed as to the law could convict on the evidence now to be considered”. This is consistent with the approach to the question of guilt as it should be determined at the original trial. 

So today, I will move an amendment embodying this formulation, which was moved, though defeated, during the Commons stages of the bill after a brief debate. The Coalition has played fast and loose with access to justice for far too long, but I hope my fellow Peers will persuade them to think again.

Lord Jeremy Beecham is a Shadow Justice Minister in the House of Lords

Published 12th November 2013

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