Miscarriages of justice compensation

What was the case about?

It has been quite widely reported in the newspapers with the most high profile application being Barry George. It deals with people who had been convicted of criminal offences that were later overturned on an appeal and whether they could claim compensation.

What did the Court decide?

Drawing on the legal framework set out by the Supreme Court in the ‘Adams cases’, the Court set out guidance as to how the Ministry of Justice (who deal with such applications) should approach their task. The full judgment is here and is worth a read.

The principle is straightforward – those who have suffered a ‘miscarriage of justice’ should be entitled to compensation. The difficulty is in working out who is a victim.

The Administrative Court was analysing and interpreting s133 Criminal Justice Act 1988 which sets out when a person should (and should not) be entitled to compensation. This was passed by Parliament in accordance with this country’s international obligations (under Art 14(6) International Covenant on Civil and Political Rights 1966). For someone convicted who does not come under s133 there is no other way of seeking redress (unless by suing the police which is very difficult as they would have to show that the police were acting maliciously amongst other things).

In order to apply, the applicant must satisfy the following :

  1. His conviction was reversed
  2. Because of a new (or newly discovered) fact
  3. That shows beyond a reasonable doubt
  4. That he was the victim of a miscarriage of justice.

 

(1) Reversed

Here, reversed does not include someone who is acquitted at their trial. Rather less obviously, it does not include someone who is convicted and appeals in time and who’s appeal is allowed.

To qualify, there has to be an ‘out of time appeal’ – ie it appeared at the time that there were no grounds of appeal, but some fresh evidence came to light down the line (for example, by way of better DNA testing) which could found a ground of appeal. Alternatively, there has to be a referral from the Criminal Cases Review Commission.

Straight off this limits greatly the number of people that can apply.

(2) New or newly discovered fact

Again, a good example would be someone convicted in the 1980s where forensic DNA analysis shows that

This should be relatively straightforward in most cases. There is an exception if “the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.” This covers those rare situations where an individual has a good defence which he does not deploy (see R v Solomon for an example).

(3) That shows beyond a reasonable doubt

This is the ‘usual’ criminal test, but reversed (in the sense that it is for the applicant to show rather than the prosecution).

(4) Miscarriage of justice

Even if someone is not whittled out above, there is a further, and quite large, hurdle. In Adams, 4 possible reasons were given for a conviction being ‘reversed’:

  1. The individual is innocent beyond any doubt (our old friend DNA here).
  2. Had the new facts been available at the time of the original trial, no reasonable jury could properly have convicted.
  3. The new evidence shows the conviction is unsafe, but it can’t be said that a reasonable jury could not have convicted with it.
  4. Something has gone so wrong with the procedure that the defendant should not have been convicted.

The position is that someone in (1) will pass the test. Those in (3) and (4) will not as they could not show beyond a reasonable doubt that they fall within the scheme. The battleground was in relation to (2).

The court found it difficult to establish exactly what the Supreme Court had ruled, and even more difficult in applying it (see the discussion at paras 27-50). The test that they came up with is at para 41 and is as follows :

Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered?

This is a very high test. Remember firstly that beyond a reasonable doubt is a high threshold to pass. Then add to that the applicant will have to ‘shut out’ the possibility of a ‘reasonable jury’, a group of 12 sensible people, finding him guilty.

There is a long discussion as well as to what should happen where a re-trial is ordered. We won’t consider that, because this is long enough already.

What then is the difference between (1) and (2)? On the one hand, it appears straightforward – in (1) the applicant has positive proof that he is innocent. In (2), he has to establish that the evidence is so weak, or so tenuous, that no jury could act on it. Whilst that is a valid theoretical difference, what cases will fall into (2)?

Fortunately, we have an example from the Court in the shape of Mr Lawless. He was convicted of murder in 2002 (on a 10-2 majority). The case against him consisted, in large, of his admissions. Since the trial, it transpired that he had a low IQ and was extremely suggestible. There are further details but, in 2009, the Court of Appeal quashed his conviction on the grounds that had the jury that had tried him heard the expert evidence of the psychologists, “it might have affected their assessment of the reliability of the various confessions … and their verdict might have been different” (I’ve added the emphasis).

The High Court noted that there was no application for a re-trial and this was because of the unreliability of his confessions. The case has been sent back for a fresh assessment from the Ministry of Justice.

Does this help formulate a test? We would suggest yes, but it does not provide all the answers. It may be intellectually rigorous, but there will almost certainly be further cases before the courts to resolve this.

Were they right?

It’s probably worth looking at this in two ways:

Legally

Legally speaking – yes (probably – it’s likely that there will be an attempt at an appeal). The Court’s job was to interpret s133 CJA 1998, not to pass comment on whether compensation should be more or less available than that. A lot of the judgment deals with the specific cases, which are fact specific, and on the law that we have, it is hard to say that they got it wrong.

Morally

Whilst it’s certainly not a court of morality, it is hard not to look at the individual cases before the court and feel sorry for those that were unsuccessful. Looking at the Barry George case, he spent nearly eight years in prison. When he was acquitted at the re-trial, it was not a surprise to anyone I know. More than that, I don’t know anyone he thought that he was actually guilty.

The presumption of innocence means just that. If someone is acquitted then they are taken to be innocent. The refusal to compensate afterwards does not sit easily with this.

A further problem is how someone is supposed to identify facts that can prove their innocence? This is not straightforward. Is it too high a hurdle to expect?

 

Why don’t you get compensation if you’re acquitted at a trial?

No. The reason for this is presumably policy. Thousands of people are charged with criminal offences each year. Thousands are acquitted (whether by a jury, magistrates court or because the Prosecution drop the case). Whilst they used to be able to claim their legal expenses back, even this is not allowed anymore in most cases. If all of these people were entitled to claim compensation, then the bill would run into millions of pounds.

 

Is that fair?

Again a difficult question. An argument that it is is that there is a process, and an acquittal is a vindication of someone’s rights, which is ‘just satisfaction’ in itself, it shows that the system worked. The Prosecution have a duty to prosecute cases and unless there is misconduct, then why should the public have to pay for that? Also, it raises the difficult question of what a Not Guilty verdict means. It may mean that the defendant was completely innocent, it may mean that the jury were ‘pretty sure’ he was guilty, but not ‘sure’. How do you distinguish the former case from the latter?

On the other hand, even if someone is on bail, time waiting for a trial where they are acquitted can be enormously stressful. There will likely be bail conditions and restrictions on what they can and can’t do. An arrest can lead to a day or so in the police cells which is disruptive and can cost someone their job. Again, there can be many days in Court which, if someone is working, they won’t get paid for.

If they are on remand then it can be even worse. The individual will almost certainly lose their job, often their home, and perhaps in many cases their family. No-one asks to be prosecuted – any citizen can have a false allegation levelled against them. How can it be fair that the state can come in on what (on the verdict) is an incorrect allegation, turn someone’s life around, and then just walk away?

I tend to analyse these matters from an individualist standpoint, probably too much so. I also ask myself the question what would I think if it was me, my friend, or my family member, who was in that boat? I would think that they would be entitled to compensation to the damage done to their lives. All the more so if this is after an appeal, especially one many years later.

There are good arguments on both sides. What do you think?

 

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8 thoughts on “Miscarriages of justice compensation

  1. James

    All very solid points indeed. I have a further, separate issue though. As I read the legislation, it strikes me as a little inappropriate that it is “the secretary of state” (a political figure) who acts as supreme judge of whether these claims are allowed or not. The courts are surely in a much better position to be applying such a legal test, but all they can do is apply the strict judicial review tests, which can’t really look at the merits of the decision.

    Should courts be considering this test at first instance, rather than the secretary of state?

    Reply
  2. Pingback: Barry George and the murder of Jill Dando | UK Criminal Law Blog

  3. Christopher

    The second test does seem particularly galling when, as in the George case, there has been a re-trial and the accused found ‘not-guilty’. What more can be asked for than to be acquitted at a trial where all the (reliable) evidence has been considered? There should be no need to speculate whether a jury could have convicted – we know the prosecution thinks that test is covered or they shouldn’t be prosecuting or requesting a re-trial in the first place.
    I can understand the need for a more theoretical test where there has been no re-trial: but where there has been a re-trial and acquittal that should be all the evidence the Secretary of State needs.
    As for the decision maker, I entirely agree with James, and especially so in notorious cases such as this.

    Reply
  4. Dan Bunting Post author

    @James – Thanks very much. You raise a good point. I certainly agree. The trend has been to move away from politicians making decisions like this.

    @Christopher – Agree again. I think it’s a recipe for injustice. The government should take the acquittal and be bound by it.

    Reply
  5. Helga Speck

    As I understand it the applicant has to prove complete innocence before being eligible to claim.

    This does not sit well with the fact that a person can make an allegation of sexual abuse (true or false) and be paid out thousands of pounds by the CICA (ergo the tax payer) without the accused ever going to trial. Even then, there can still be a payout to the complainant if he is found not guilty.

    Who decides the burden of proof when dishing out tax payers’ money to complainants of sexual abuse? As I understand it, the burden of proof is ‘probability’. So if a complainant says something happened, then it ‘probably’ did.

    A victim of a Miscarriage of Justice does not seem to enjoy this burden of proof. I believe that there should be a complete overhaul of the ‘Compensation’ Industry when it is the tax payer who pays. The burden of proof should be the same for either side otherwise there is a massive imbalance.

    Reply
  6. M Jenkins

    Excellent article.

    Often, it’s a combination of a (2) and (4) as is/was the case with the Cardiff 3. Compensation is important as it can help the wrongfully convicted rebuild their lives and launch civil cases. It also sends a message to the community/public that the legal system failed. However, compensation doesn’t necessarily bring justice. Those who have been wrongfully convicted want to be completely cleared. I think the problem is that there is no single organisation that helps victims of miscarriages of justice, or indeed investigates miscarriages of justice.

    I refer you to http://thejusticegap.com/News/wrongly-accused-who-is-responsible-for-investigating-miscarriages.

    I agree with the comments above. Compensation payment (by CICA) for sexual allegations (false or true), without a trial, is beyond absurd.

    Reply
  7. Dan Bunting Post author

    Thanks for that. You both raise interesting points. The CCRC is obviously supposed to be the body that helps and investigates miscarriages of justice, but there are many criticisms that can be levelled against them.

    The comparison with CICA compensation is a very interesting one. We will come back to that when time permits!

    Reply
  8. Pingback: More Miscarriages of Justice Compensation – Allen v UK | UK Criminal Law Blog

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