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Baroness Blatch moved Amendment No. 52:

After Clause 26, insert the following new clause:

Assessment of compensation for miscarriage of justice

. In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice), after subsection (4) insert—
"(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—
(a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;
(b) the conduct of the investigation and prosecution of the offence; and
(c) any other convictions of the person and any punishment resulting from them."").

The noble Baroness said: In speaking to Amendment No. 52 I shall also speak to Amendment No. 68, which is consequential upon it.

From time to time, usually in regard to an individual case, there is some confusion and even misunderstanding among the public as to how the current compensation arrangements work. This modest amendment seeks to cast some light on the matter and to enshrine current good practice into statute.

The Committee will know that it was in this House, during the passage of the Criminal Justice Act 1988, that an amendment was introduced to place compensation for miscarriages of justice on a statutory footing. The wording of Section 133 follows closely that of Article 14.6 of the International Covenant of Civil and Political Rights, ratified by the United Kingdom in 1976. The gist of Section 133—forgive me if I do not cite the exact words—is that compensation for a miscarriage of justice shall be paid: if a conviction is quashed on an out-of-time appeal; or if a conviction is quashed after the case has been referred to the Court of Appeal by the Secretary of State; or if a pardon is granted. In each case it is where new evidence has arisen the non-disclosure of which at an earlier stage is not wholly or partly attributable to the applicant.

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The new clause proposed makes no changes to the entitlement to compensation under Section 133. Nor will it, of course, affect our international obligations. What it does is to indicate the main factors which the assessor will take into account. Section 133 extends to Scotland and Northern Ireland where an assessor is appointed on an individual case basis. The current assessor for England and Wales is Sir David Calcutt, QC. Again, this amendment will not affect Sir David's method of work or that of the other independent assessors; it simply places on a permanent footing the approach which he and they take to calculate the amount of compensation payable in any case to which Section 133 applies.

Amendment No. 68 makes a consequential change to the Long Title of the Bill. I beg to move.

Lord McIntosh of Haringey: The Minister was good enough to write to me and to a number of my colleagues about the amendment when she first tabled it. I accept her assurances that it does not affect the scope of Section 133 of the Criminal Justice Act; nor does it affect our obligations under international law. To that extent the amendment is satisfactory.

However, there is more than one aspect to compensation. There is the statutory aspect that is provided under Section 133 and which is compatible with the seventh Protocol for the Protection of Human Rights and Fundamental Freedoms. But there is also the ex gratia part of compensation payments, as outlined in November 1985 by Douglas Hurd when he was Home Secretary. That limits other payments to those cases where there has been a serious default on the part of a member of the police force or some other public authority. That is not statutory. Perhaps Members of this House should have been more on the ball when we considered the Criminal Justice Bill in 1988, but we were not. The result is that part of the compensation process is an executive decision of the type which the European Commission recently criticised. So compensation is of a civil character, and it ought to be determined in accordance with Article 6(1) of the Convention, which states:

    "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

Executive decisions of the kind that make up the ex gratia part of the compensation scheme are not covered in that way and may not—I am not saying that they are not—always be impartial and independent. So there are defects in the procedures of the ex gratia part of the compensation system.

There are also defects in the coverage. As I understand it, the ex gratia system does not cover misdirections by trial judges on questions of law. Therefore defendants who have been substantially acquitted on appeal are not necessarily entitled to compensation. In the absence of new or recently discovered facts, compensation is left to the determination of the Home Secretary in accordance with the statement that I quoted from 1985. This situation is not satisfactory. Compensation to those whose convictions were quashed under some of the more famous miscarriages of justice cases is still under negotiation, and is indeed the subject of considerable argument and disagreement. Although we shall not oppose this amendment, it must be made clear that it does not deal

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with the major anomalies which still exist in cases of compensation for miscarriages of justice. This, again, is a matter to which we may have to return at a later stage.

Lord Airedale: The new subsection 4A that is proposed refers to,

    "suffering, harm to reputation or similar damage".

What do those words "or similar damage" mean? What do the Government have in mind as to damage which is similar to harm to reputation? To what do those words "similar damage" refer?

Baroness Blatch: On that particular question, I assume that these are the kinds of consideration that are made by anybody considering the damage. I should have to take advice as to how a judge or somebody adjudging such a situation would determine "similar damage". The reason it is given to people with those particular skills is for a judgment to be made about damage or similar damage. Quite a lot is set out in the tariff as to what should be considered a similar injury. I do not know whether that will satisfy the noble Lord. If he would like to discuss the matter with me, or with my officials, after this particular amendment has been discussed, then I should be glad to do so.

Perhaps I may address the point made by the noble Lord, Lord McIntosh of Haringey. First, I hope he will agree that this particular amendment impacts on Section 133 and that it sets out on the face of this Bill the particular aspects that have to be taken into account when considering compensation. But it would not be appropriate for compensation to be available as a rule in cases which are satisfactorily dealt with by the normal trial and appeal process, since well-founded and justified prosecutions may fail simply on a technicality, all because the high standard of proof was not met. But an application for ex gratia compensation will always be carefully considered on its merits.

Again, I should like to think more about what the noble Lord said in the course of speaking to this amendment. If there is anything more that I can say on the matter or if any modification needs to be made to accommodate the point, again, without prejudice, I should like to go away and read what has been said.

Perhaps I may return to the point on "similar damage". I am told that hurt feelings, embarrassment or a sense of outrage are examples of similar damage.

I turn to the point that was raised by the noble Lord, Lord McIntosh, on the European Convention on Human Rights. There is no limit to the payment that may be made under the ex gratia scheme. They are exceptional payments where there is no entitlement in law to compensation. For that reason, there is no question of civil rights or obligations. I am advised that the European Convention on Human Rights is not relevant—

Lord McIntosh of Haringey: I am sorry, but that really is not a satisfactory answer. We know, of course, that the ex gratia payment scheme has been made to work for the past 10 years; and we know that it works on the basis of guidelines from the Secretary of State. But what the European Commission is saying is that executive decisions of this kind are no substitute for statutory rights. Far too much of the compensation for miscarriages of

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justice is in the form of ex gratia payments rather than in the form of statutory rights. I would have hoped that the opportunity would have been taken when an amendment of this kind was being put down to extend the scope of statutory rights and to reduce the scope for executive decisions and ex gratia schemes. That is the kind of thing that I was looking for. I am grateful to the Minister for saying that she will consider the matter further. Perhaps we can talk about it between now and a later stage.

On Question, amendment agreed to.

Clauses 27 to 32 agreed to.

Schedule 1 [The Commission: further provisions]:

[Amendment No. 53 not moved.]

Baroness Blatch had given notice of her intention to move Amendment No. 54:

Page 21, leave out lines 36 to 43 and insert:
("(1) The Commission shall—
(a) pay to members of the Commission such remuneration,
(b) pay to or in respect of members of the Commission any such allowances, fees, expenses and gratuities, and
(c) pay towards the provision of pensions to or in respect of members of the Commission any such sums,
as the Commission are required to pay by or in accordance with directions given by the Secretary of State.").

The noble Baroness said: In speaking to this amendment, I should like to speak also to Amendments Nos. 61 and 63.

As the Committee may know, the Treasury has now decided to assume a more strategic role in relation to the oversight of non-departmental public bodies and in relation to their funding and pay arrangements. As part of this process it is looking at ways of withdrawing from its current role in approving the pay arrangements and so forth of such bodies. With this aim in mind it does not wish to acquire any responsibility in this respect for any additional NDPBs.

Amendments Nos. 21, 23 to 27 and 29 therefore delete the references to the consent of the Treasury in relation to the proposed arrangements for paying the commission and its staff, the numbers of staff that the commission may employ and their terms and conditions of service. In preparing the amendments to make the necessary changes, we came to the conclusion that there was no reason why the commission should not in fact handle the calculation and processing of the salaries and pension arrangements of its members. Amendment No. 21 therefore also makes this change—

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