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It is not unreasonable to say that there should be a limit for miscarriages of justice. I know that the noble Lord says that a miscarriage of justice is always the fault of the state and therefore full reparation should be made. Of course, in some cases, miscarriages of justice occur because of mistakes, or even misconduct, by the prosecuting authorities. It is interesting that the Criminal Cases Review Commission commented in its annual report that some of the themes which led to a miscarriage of justice in past years were becoming less common. For instance, the commission says that, for its cases decided last year, only one was dominated by non-disclosure and none involved forced confessions post-dating the introduction of the Police and Criminal Evidence Act 1984. Convictions may be quashed where no fault could be attached to the prosecuting authorities—perhaps where the defence failed to adduce evidence or a witness lied.
I have, of course, noted the comments of the Joint Committee on Human Rights in its report, and its recommendation that we should not have a cap. We do not agree, which is why we have proposed the cap on compensation for miscarriages of justice at £500,000.
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Baroness Butler-Sloss: On the first of the three amendments in this group, which I support, it crossed my mind that if the Government stay firm on the period of two years it might be that one should look at proposed new subsection (2A) in Clause 111(3) and see whether it is appropriate to have the phrase, “exceptional circumstances which justify”. Certainly, as a lawyer, the phrase “exceptional circumstances” means exactly what it says: circumstances which should be very rare.
The psychiatric disability of someone who has been in prison for more than 10 years, has had that corroding element of knowing that he or she is innocent and is then released, may mean that they go to ground. They may not be capable of making the application until they get into the hands of a psychotherapist. It may be that if this came up on a number of occasions, the circumstances could not be said to be “exceptional”. There is nothing really all that unusual about having a psychiatric problem if you have been unjustly imprisoned for more than 10 years. Would the Government consider saying something such as, “if the Secretary of State considers it appropriate”, rather than “exceptional circumstances”?
Lord Baker of Dorking: I have considerable sympathy with the amendments of the noble Lord. It fell to me, when I was Home Secretary, to set up the royal commission that recommended the creation of the commission that investigates miscarriages of justice. It is much better for that commission to operate than for the Home Secretary to examine the cases, which it fell to me to do. When that Bill was passing through, the commission did not recommend that there should be any limitation on the compensation for victims of a miscarriage of justice. I agree entirely with the noble Lord, Lord Thomas, that there is a fundamental difference between the compensation available to victims of crime and victims of a miscarriage of justice.
Yes, victims of crime should have compensation. Many of them receive relatively small awards; some are more substantial, such as for a broken leg or something of that sort. However, if someone has suffered a miscarriage of justice and has had to remain in prison for 12 or 15 years—I had to release several people who had remained in prison for substantially over 10 years including one who was accused of a gruesome murder but was absolutely innocent—his life is utterly destroyed. Your Lordships might ask what should be the compensation for that. It should certainly not be half a million.
The Government clearly half accept the case. The Minister said that he will table amendments on
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Why should there be a level? This is a Treasury provision—it does not stem from the Minister’s department. This is the Treasury wanting to cap, but what are they going to cap? Half a dozen cases a year? When this amendment comes back for £1 million, I think there should be no limit. The decision about compensation should be left to the discretion of the court. Only the courts can decide. When you have destroyed someone’s life and he has no way of working or going back to a normal life, it should be for the court to decide the compensation, not the Treasury.
Lord Elystan-Morgan: I applaud the principle that underlies these three amendments. I suspect that it finds an echo in the heart of the Minister. I welcome the fact that there is to be some relaxation of the rigour of what otherwise would be an extremely unjust limitation. Nevertheless, the Government are not standing on any ground of principle that can in any way justify their actions. The argument is purely fiscal. They are saving money at the cost of injustice. That is not too harsh a way of putting it.
Lord Clinton-Davis: How much money are they saving? Is it not cheese-paring?
Lord Elystan-Morgan: That may very well be so, but the noble Lord would accept that it does not really matter whether it is thousands of pounds or millions of pounds—the cost, the price and the value of justice are entirely different.
The principle of compensation in our law has always been on the basis of restitutio in integrum—restitution in full. A person should be compensated in full by the perpetrator of the unlawful act. In this case, the Government are not responsible for an unlawful act but for an act that is flawed in law, which is not a casuistic distinction. Authority with all its powers, sovereignty and resources has made a mistake. Therefore the moral obligation is exactly the same as where a deliberate tort is committed. If a person was badly injured, was owed a couple of million pounds of compensation and was able to sue the perpetrator of that act—assume that he was worth powder and shot—there would be no cap on that. Why should there be in this situation? The argument put forward by the Minister about documentation and the two-year period cannot stand for a moment. If any situation on this earth is well documented—and those documents will be there for examination in tens and probably hundreds of years—this is such a situation. There will be a full transcript of what happened at the court hearing; there will be a full transcript of exactly what happened at the Court of Appeal hearing. All the necessary documents will be there. Therefore, I
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The Lord Bishop of Chester: I strongly support the amendments, especially the second one. To put any formal limit on the time when application may be made for compensation is flawed in itself, but six years would be better than two. As the noble Lord, Lord Elystan-Morgan, said so eloquently, there is no moral equivalence between the state stepping in to offer some recompense for a wrong committed by someone else and the state itself being in one sense or another the perpetrator of the wrong. The noble Lord also referred to an important difference, which is that in the case of someone injured by another party, there is always the possibility of recourse to the civil courts if there is either an insurance policy or some wealth that can be attached. In other circumstances, there is at least the possibility of the courts giving whatever compensation they think is just in the circumstances.
It is wrong for the state to set a limit, even of £1 million. Imagine someone who had had a professional career who had been in prison for 15 years. Today, for someone rebuilding their career, even £1 million seems a modest amount. There is no moral equivalence between those different cases. That has been implicitly admitted by the Minister in his offer to come back on Report with a limit of £1 million. How much better it would be to leave the matter for the courts to take a proper, principled and moral view of the situation as cases arise and to do away with this rather shoddy proposal that the state should, as it were, insure itself against its own moral mistakes.
Lord Clinton-Davis: I cannot improve on the arguments that have just been adduced, or those of the noble Lord, Lord Elystan-Morgan, but it is important that someone from this side should also adopt the argument. I have not heard that yet. I hope that my noble friend will think again about this and come back to the House on Report.
Lord Thomas of Gresford: I am most grateful for the support that my amendments have received from around the House, and especially for the most powerful support of the noble Lord, Lord Baker of Dorking, who, as he told us, introduced the scheme in the first place.
It is quite wrong to equate this type of compensation with compensation for criminal injuries. When a person is a victim of crime, they are surrounded by agencies to assist them. It could be the police; it could be social workers. A person who has suffered in some way will be told about the scheme and what to do. When someone broke into an outhouse at my home and stole some tools belonging to builders who were working at my home, I was offered counselling. I do not think that I particularly needed counselling at that time, but I am trying to make the point that a victim of crime is
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The only reason put forward by the Government for putting a time limit on the making of applications was that the documents might be lost. As noble Lords, especially the noble Lord, Lord Elystan-Morgan, have pointed out, that is ridiculous. The Court of Appeal will have all its documents for all time. Its judgment will be there for all time. There can be no question of the reasons for the decision of the court being lost, and it is not really for the independent assessor to go behind the judgment of the Court of Appeal and the documents brought before it to say, “It did not take into account this document, which was discovered many years ago”. The Court of Appeal decision is final. That gives rise to the right to claim compensation, so I completely reject the suggestion that you can justify a time limit because documents will be lost, as I reject the suggestion that two years should be a limit because that is the limit for criminal injuries compensation.
4 pm
The second amendment deals with the fact that the limit of £500,000 is being introduced because that is the limit for criminal injuries. I was once a member of the Criminal Injuries Compensation Board, and when the tariff scheme was introduced in 1992 along with the move from the ordinary position that pertained up to that time—there was to be no limit, and criminal injuries compensation was to be equated with civil damages, although it was not this Government who did it—I resigned because it seemed to be grossly unfair to the victims of crime. However, we are talking not about victims of crime but about victims of agencies of the state. Whether something has gone wrong in the investigation process—the police have beaten a statement out of someone—or whether a witness called by the prosecution has lied, it is still agencies of the state that have caused things to go wrong. I gave your Lordships an example of the forensic scientist from the Midlands who caused such havoc in the 1970s and 1980s.
I am most grateful to the noble and learned Baroness, Lady Butler-Sloss, for her very helpful suggestion that “exceptional” should at the very least be removed from the following new subsection (2A). However, that does not go far enough. I see no reason why the state should impose artificial limits on its own liabilities. It is the victims who have suffered the most who will be the losers as a result; and it is not the people who have suffered a little, but those who have received the greatest blow to their self-esteem, to their health, to their future and their career who will suffer if you put in limitations of the sort that the Government propose at this time.
With the benefit of the support that your Lordships have given me from all around the Committee, I shall return to this on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121 to 122ZA not moved.]
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Lord Thomas of Gresford moved Amendment No. 122A:
(1) Where a magistrates’ court has proceeded in the absence of the accused and the court has imposed a fine following conviction, any warrant to enforce the fine or other financial penalty may be suspended or withdrawn and the matter returned to the court which convicted the offender.
(3) Regulations made under subsection (2) shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person.
(4) In subsection (3), “vulnerable person” means a person who could not reasonably be expected to act on his own behalf including, but not limited, to—
The noble Lord said: The noble Lord, Lord Lucas, is not in his place today and he has asked me, as my name is attached to Amendment No. 122A, to explain to your Lordships what it is about. The amendment deals with the position in which a warrant to enforce a fine imposed by a magistrates’ court has been issued. It proposes that the magistrates’ court should have the power to withdraw or suspend that warrant. Proposed subsection (2) suggests that:
giving a court or the Courts Service, which would have the responsibility of enforcing the warrant, or indeed the bailiff who is seeking to enforce the warrant, the power,
The noble Lord, Lord Lucas, is particularly concerned—as is the Zacchaeus 2000 Trust, on whose behalf Reverend Paul Nicholson speaks with such fervour on this subject—about a vulnerable person, as referred to in proposed subsections (3) and (4).
Amendments Nos. 137A and 142A, which are grouped with it, also deal—
Lord Bach: I believe that those amendments have been degrouped.
Lord Thomas of Gresford: In that case, I beg to move.
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Lord Bach: I am grateful to the noble Lord, Lord Thomas of Gresford, for moving the amendment in the name of the noble Lord, Lord Lucas. The reply I have is somewhat lengthy and I shall try to cut it down, but it is important that the Committee understands why this proposed new clause is not acceptable to the Government.
The proposed new clause in Amendment No. 122A seeks to address issues which were raised in an amendment in another place. Of course, the Government understand the concerns on this matter. We have to make allowances for the fact that some people, because they are vulnerable, do not respond when they ought to notifications from the court. That does not mean that the courts ought to permit those convicted in their absence to simply ignore the sentence imposed on them. But, if someone is identified as vulnerable, the courts should have the power to look again at the fine or financial penalty. We do not accept this proposed new clause because that power already exists and is used by the courts.
As the noble Lord said, the proposed new clause looks to provide an opportunity to suspend or halt the enforcement of fines against vulnerable people who are convicted in their absence by suspending or withdrawing any warrant issued against the offender. It would allow certain persons to be given the power under regulations to suspend or withdraw a warrant to enforce a fine or other financial penalty.
Lord Clinton-Davis: I am rather troubled by the phrase “vulnerable person”. Is that defined in any other statute?
Lord Bach: As I understand it, it is not defined in statute. It is defined in guidance of various kinds. We, too, are troubled by that expression in this context, and I shall say a little more on that shortly. Subsection (4) of the proposed new clause attempts to define a vulnerable person for the purposes of this power.
Let me explain to the Committee the long process which would have to be gone through before a person sentenced to a fine in their absence ever got to the stage of having a bailiff at the door attempting to seize assets to pay a fine. It would involve many different opportunities for the offender to make it known that he or she found it difficult or impossible to pay the fine. The offender would have numerous opportunities to contact the court and to explain the circumstances.
Following any charge or final notice, depending on the offence which has been committed, the offender will receive a summons informing him when his case is due to be heard, together with a request to provide means information. If a person is summoned to attend but does not, he may be tried in his absence. That decision is made by the court, but it must have regard to the principle that a defendant is entitled to a fair trial, which must include a fair opportunity for the accused to be present and/or to be legally represented. The principle that the defendant should have a fair opportunity to be present does not amount to an unlimited opportunity or a defendant could indefinitely postpone the proceedings. There can be
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Where the offender did not respond to a summons and did not produce any means information, a fine or other financial penalty can be imposed, whether it is a compensation order, costs or victims surcharge. It may have to be imposed in the absence of any information about the offender’s particular circumstances. Since March 2006, the fines collection scheme provided for by the Courts Act 2003 applies and a collection order will normally be made where a fine is imposed. The offender will receive a copy, along with a notice of financial penalty. This will explain how to pay and offers the offender an opportunity to make contact with the court to ask for time to pay if they cannot afford to pay the fine as ordered. But if the offender fails to pay and makes no contact, what happens then? The fines officer will issue a final demand, a further steps notice, saying that unless payment is made, enforcement action will start without further notice. This further steps notice again provides the offender with an opportunity to engage with the court and ask for time to pay. The notice also explains the consequences of further default and outlines the sanctions which the court can impose.
If the offender still fails to respond, after approximately three weeks the fines officer will decide which enforcement sanction to deploy once a check has been made to ensure that the offender has neither made payment nor contacted the court to explain why they have failed to do so. While the ultimate sanction for fine default is imprisonment, this, I think the Committee will be pleased to hear, is a rarely used sanction. Of course it is used, but not often these days. However, the fines officer and the court have at their disposal a number of enforcement sanctions which they will consider and/or try before getting to this stage.
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