A government attempt to cut compensation for miscarriages amounted to “an affront to our system of law”, Baroness Helena Kennedy told fellow peers yesterday. The House of Lords were debating clause 161 of the Antisocial Behaviour, Crime and Policing Bill which considered the proper test that should be applied to determine whether a person should receive compensation for a miscarriage of justice. Sketch by Isobel Williams  – see Isobel’s website

• Read more about the Bill, including Dame Ruth Runciman’s briefing HERE
• No defence: miscarriages of justice and lawyers is that latest publication in the Justice Gap series and follows on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (to be published in association with Solicitors Journal and Wilmington shortly). You can download that collection HERE.
• Contributors for No Defence include Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis FitzGibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.

The Bill offers a statutory definition for those cases where compensation should be paid for a wrongful as where a new or newly discovered fact showed “beyond reasonable doubt” that the defendant was innocent. An amendment moved by barrister Lord Pannick’s rejected such an innocence test and stated that compensation should be paid if such a fact showed conclusively that the evidence against the defendant at trial was “so undermined that no conviction could possibly be based on it”.

“My concern with [clause 161] is that it has never been the role of ministers or the courts in our system of criminal jurisprudence to pronounce on the innocence of those accused of crime. If the state cannot prove guilt, the defendant is not guilty, irrespective of whether he or she is in fact innocent.”
Lord Pannick

The QC’s amendment was based on a test formulated by former president of the Supreme Court, Lord Phillips of Worth Matravers in the case of Adams – read MarkNewby on Adams. The Supreme Court had said such a test would “not guarantee that all those who are entitled to compensation are in fact innocent. It will however ensure that when innocent defendants convicted on evidence which is subsequently discredited, they’re not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt.”

Lord Brown of Eaton-under-Heywood, who dissented in Adams, called the amendment a “a fudge”. “One of the plain troubles with the proposed amendment is that some – not many, I accept, but some – of those who are undeserving will be compensated often to the tune of a very substantial sum, hundreds of thousands of pounds.”

Blinking into the light
“To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law,” said Baroness Helena Kennedy. “… It is very difficult for people to prove that they are innocent beyond reasonable doubt: “Prove that you didn’t kill your baby”; “Prove that you didn’t leave a bomb in the pub”.”

The Labour peer cited her own experience representing defendants in the Guildford 4 appeal as well as the case of Mary Druhan convicted of arson when she was in her 50s.

“She came blinking out into the light after 11 years in jail, totally institutionalised, unable to negotiate public transport and incapable of rebuilding her life without considerable help,” Kennedy said. “That is why compensation matters. Her daughter had committed suicide while she was in prison. It was a tragedy.” Her case was championed by the BBC’s Rough Justice which in Kennedy’s words did the “hard graft” of revisiting the case, finding that the fire could not have been started in the way described and proving that Druhan was not in the area at he time. “Rough Justice has gone now,” she said. “It is not the kind of thing that the BBC spends money on any more. It was, it said, “too expensive” and has been replaced by Big Brother and other celebrity driven programs of much less value.”

Kennedy said: “Systems go wrong. It is one measure of a society’s values that it is able to put right what has gone wrong.”

Lord Beecham argued that the clause tarnished the “reputation if our justice system… and perhaps of the government themselves”. He described the savings hoped to be achieved by the reform “vanishingly small”. “The government’s assessment of the financial savings amount to all of £100,000 –a mere flea bite compared with the amounts, for example, they are seeking to recover from their favoured contractors, Serco and G4S for their glaring contractual failures,” he said; adding that the number of successful cases was “equally tiny – just four cases” since 2008.