The British government will this week make a renewed bid to pass legislation that would make it nearly impossible for those wrongfully convicted of crimes to claim compensation after they have been released.
The clause was included in the Anti-Social Behaviour, Crime and Policing Bill, which was easily passed last year in the House of Commons but rejected by the House of Lords last month.
Under existing law in England and Wales, an individual can win compensation if new evidence is presented that shows "beyond reasonable doubt that there has been a miscarriage of justice".
Home secretary Theresa May wants a stricter test whereby compensation would be paid only "if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence".
Despite MPs’ backing for her plans, the House of Lords voted for an amendment to ensure compensation is paid where it becomes clear the evidence is “so undermined that no conviction should be based on it”.
Tomorrow, the legislation returns to the House of Commons to consider the changes made by the Lords – where the home secretary will have the numbers to overturn the peers’ changes, unless Liberal Democrat MPs revolt.
Last year, one member of the Birmingham Six, Billy Power, who was wrongfully convicted of bombings in the 1970s, said Mrs May's plans mean that "the standard presumption of innocence would be abolished" in English law.
“Introducing new legislation that makes it impossible for a person wrongfully convicted to pursue compensation leaves that person open to the unchallengeable impugning of their character by the media and others,” he said then.
Following their release, the Birmingham Six and the Guildford Four successfully sued a number of British newspapers for claiming their innocence had not been proved.
That will not be possible in future if the home secretary’s plans succeed.
In its Philips ruling, the Supreme Court in London decreed compensation will only be paid in cases where new evidence emerges that is so significant no conviction could safely be based upon it.
Helena Kennedy, who represented the Guildford Four, said the demand that those released should have to go further and prove their innocence beyond reasonable doubt is an affront to the system of law.
“It flies in the face of one of our key legal principles, which acknowledges that it is very difficult for people to prove their innocence. It is very difficult for people to prove they are innocent beyond reasonable doubt,” she said.
“Prove that you didn’t leave a bomb in the pub, or prove that you didn’t set that fire. In a few cases, DNA can prove innocence, and in a few an alibi can be bullet-proof, but I assure you that those cases are rare.”