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Criminal Justice and Immigration Bill

My Lord, there is certainly a difference and of course I accept that. I understand that the average compensation paid goes a little way towards making the point I tried to make, but as it is an average it does not speak about every case. It has been argued—it was hinted at tonight—that miscarriages of justice are always the fault of the state. It is for the state to compensate but it is not always the fault of the state, although it is at fault on occasion. Sometimes a complainant makes false allegations and is believed by both the prosecution and the jury. We all know of that having happened. Sometimes new techniques—DNA is the best example—are developed that provide better and clearer evidence. There are cases where no blame at all can be attached to the prosecuting authorities for a conviction that is rightly quashed. In reality, in all cases whether or not the state is to blame, it has to pay the compensation. The same reality means that the state is responsible for compensating victims of crime as the people who commit offences are often what used to be described as men of straw in that they have no financial backing. Such responsibility is right in a civilised country. There is nothing to stop someone seeking redress through the civil courts following a miscarriage of justice for, say, malicious prosecution, in the same way that a victim of crime can bring civil proceedings against the person who harmed him. I recognise that such a course, particularly an accusation of malicious prosecution, has many difficulties if one is to prove it. That is why we attempted to explain in Committee that the requirements for making an application for compensation under the miscarriage scheme operated by my right honourable friend the Lord Chancellor are much less onerous than making a civil claim through the courts, and rightly so. For those reasons it is appropriate that compensation should be capped, but we acknowledge that some refinement of the £500,000 limit provided for in the Bill would be sensible. Government Amendment No. 86C in this group would increase the maximum payable from the current £500,000 in all circumstances to the same amount where the applicant has spent less than 10 years in relevant detention, and up to £1 million where the applicant has spent 10 years or more in relevant detention. This enables very substantial compensation to be made to applicants, but recognises the principle that compensation should not be unlimited, and that applicants do not have to prove their case in the same way that they would in a civil court. I accept that the amendment would mean that there is no longer a straight read-across to compensation paid to victims of crime, where the limit is £500,000. It would none the less keep a link for most cases, while recognising that where, as a result of a miscarriage of justice, an applicant has spent as long as 10 years or more in prison, more compensation could be paid. Government Amendment No. 86E would enable both the £500,000 and £1 million limits to be altered by affirmative resolution of both Houses. Government Amendment No. 86F sets out in some detail the types and periods of detention that would be counted when calculating which caps should apply. Government Amendment No. 86G would ensure that the provision inserted by Amendment No. 86F extends to Northern Ireland. Finally, Amendments Nos. 115C, 115D and 115E make similar provision for compensation for miscarriages of justice in the Armed Forces. I turn to Amendment No. 86D in the name of the noble Lord, Lord Thomas of Gresford. This seeks to remove the cap on how much can be paid for lost earnings in any one year when the assessor is making an assessment. The pecuniary loss element of miscarriages of justice compensation awards is intended to compensate for such things as loss of earnings, loss of future earning capacity, loss of opportunity and loss of pension contributions. Its purpose until now has been, as far as it has been possible, to put the applicant back into the financial position that they would have been in but for the miscarriage of justice. Increasingly, applicants have submitted hugely complex and speculative claims. The assessor is left with the difficult task of determining the financial position an applicant would have been in had the miscarriage of justice not occurred, as against the position they thought, or even hoped they might have been in. Consequently, claims can, not unusually, take years—not months—to sort out. On average, it takes three and a half years and, in several cases, over 10 years. Of course, they also cost a very large amount of money. I have evidence of a forensic accountant’s bill for £400,000. I am not saying that it related to a question of compensation for loss of earnings, but it is an example of how large these bills can be and what a long time they take to work out. It is in everyone’s interest for these cases to be finalised as quickly as possible. This will be facilitated by a cap on the amount of compensation that can be awarded for any year’s lost earnings because it is likely that less evidence of loss will be required and will be easier to provide. Indeed, swifter resolutions will, perhaps, help some applicants to draw a line under what, in every case, is an unfortunate experience, to put it mildly, if they have been the victims of a miscarriage of justice, and to move on with their lives. The proposed limit is one and a half times the median gross annual earnings as published by the Office for National Statistics. Again, this is in line with what applies under the Criminal Injuries Compensation Scheme and will bring about a better balance with compensation paid to victims under that scheme. Finally, Amendment No. 86A in this group would extend the proposed time limit for making a claim for compensation in relation to a miscarriage of justice from two to six years. Our proposed limit of two years for making an application is the same as that for making an application for criminal injuries compensation. We do not accept that it should be increased to six years, in line with that for bringing many—but, of course, not all—types of civil action. All that is required to make an application for compensation is the completion of a relatively simple form, giving the factual details of the case or, indeed, simply writing a letter setting out the circumstances. There is no equivalent burden of proof to be met or substantial argument to be presented. In the vast majority of cases, two years from the date of the quashing of the conviction or the date of the retrial should be sufficient time to make such an application. We have of course made provision for an application made after the two-year period to be accepted in exceptional circumstances. Someone being incapacitated for a large part of the two-year period might well be regarded as an exceptional circumstance. I am sorry that we disagree with the noble Lord on the principle of capping payments for miscarriages of justice. We think, for the reasons I have attempted to state, that we are right about it. I hope that the concession—if that is the right word—that we have made in raising the amount for those who have suffered the longest miscarriages of justice slightly assuages the noble Lord when he hears our arguments. We have moved some way in his direction, and I hope that he feels able to withdraw his amendment.