We looked at the way that the Court of Appeal dealt with deciding whether victims of miscarriages of justice should be compensated in various cases (including Barr George) earlier in 2013.
It was widely reported on 12th July 2013 that Lorraine Allen lost her bid in the ECHR to be compensated after serving a three year sentence for the manslaughter of her son. She was convicted in September 2000 and sent to prison. Her conviction was quashed in 2005 (long after she had served her sentence) on the grounds that the medical knowledge relating to ‘shaken baby syndrome’ had moved on since then and there were alternative explanations for the injuries.
The Court of Appeal did not order a re-trial (which is not unusual in a case where someone has served their sentence in full).
Ms Allen applied for compensation under the scheme in place at the time (again, fuller details in this post). This failed in the UK, in part because there was no ‘new fact’ – just a re-evaluation of the medical evidence. Further, Ms Allen could not establish her innocence.
She took her case to the ECHR arguing that to deny her compensation put the UK in breach of its obligations under Art 6(2) European Convention – “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law“. Ms Allen was not complaining that the refusal or compensation per se was a violation of the presumption of innocence, just that in her particular case the reasoning of the English Court of Appeal when they refused compensation was in such terms as to cast doubt in her innocence. v
The ECHR stated the principles to be applied: “the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence.”
What did that mean in Ms Allen’s case? The ECHR is a review Court – their job is to review the decision of the Court of Appeal (in this case) to see whether its decision is within the margins of what is permissible. Here, they concluded that the Court of Appeal stayed well within that margin and, therefore, that the appeal had to be dismissed.
It is important to note that the ECHR analysed the question by considering the Court of Appeal’s role when set against the statutory test, not whether the statutory test was unlawful of itself. What I mean by that is that the Court of Appeal has to go through the questions that are set out in s133 Criminal Justice Act 1988 and give reasons for their conclusion.
The ECHR then looked at the answers they gave and the language they used, they did not look at whether the questions that they are told to ask are the right ones. It may be that they come back to that another day.
As noted in the previous post, this area gives rise to some pretty complicated issues. It seems to me, however, that when the state takes away someone’s liberty, and they do so wrongly, they should have to compensate the individual for that. There will be people who ‘get away with it’ as a consequence, but I would rather that there were unmeritorious cases of people getting compensation than people who are innocent, and have had their lives torn apart by the state, not being given any recompense for that.