Tuesday, 29 January 2013

Compensation for 'Miscarriage of Justice'

Barry George - denied compensation
The International Covenant on Civil and Political Rights 1976 Article 14(6) gives a right to compensation in some circumstances to those who have been the victim of a miscarriage of justice:

'When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.'

The Criminal Justice Act 1988 s.133 gave effect in national law to the covenant:


'when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.'

Section 133 therefore requires that (a) there is a new or newly discovered fact; (b) showing beyond reasonable doubt; (c) a miscarriage of justice.


The compensation scheme under section 133 is now the only scheme in operation.  An ex gratia scheme was closed in 2006 - see Note at the end of this post.  The ex gratia scheme had operated for many years.

In May 2011, the Supreme Court (sitting with nine justices) decided  R (Adams) v Secretary of State for Justice [2011] UKSC 18 where s.133 had to be interpreted and applied.  This was discussed in a post on this blog 11th May 2011.

The Supreme Court had to decide what the phrase "miscarriage of justice" meant for the purposes of s.133.  The majority concluded that it covered two categories of case.  Category 1, where the fresh evidence shows the person to be innocent.  The court considered that compensation was not intended to end there and so a second category was considered.  However, defining Category 2 proved to be more problematic.  The Supreme Court's press release stated the majority position on Category 2 was where  -  ' ... a new or newly discovered fact shows conclusively that the evidence against a defendant  has been so undermined that no conviction could possibly be based upon it.'  (Note:  The Press Summary is not part of the court's reasons).

In the light of the Adams case, five individuals asked the Secretary of State to reconsider their cases for compensation but, having done so, the Secretary of State refused to award compensation to any of the claimants.  In R(Ali and others) v Secretary of State for Justice [2013] EWHC 72 Admin, the Administrative Court decided judicial reviews of the Secretary of State's decisions.  It was necessary for the Administrative Court to square up to the formulation of the Category 2 test set out by the Supreme Court.

For Category 2 cases, the Administrative Court preferred a formulation of the test as whether 'the claimant has 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.'  The Administrative Court argued that this test 'may be more readily useful to lawyers advising claimants and the Secretary of State.

Whether this reformulation of the test set by the majority of the Supreme Court proves to be acceptable further up the judicial hierarchy than the Administrative Court remains to be seen.  The court stated [para. 40] - 'In our view, it is highly desirable that the test should be formulated in a practicable way, and with reference to the system of criminal justice that obtains in England and Wales. It must accommodate the fundamentals of that system: the burden and standard of proof, and the tribunals of fact who reach conclusions on guilt or innocence.' 

All compensation decisions depend on there being a new or newly discovered fact.  This is so whether the case is within Category 1 or 2.  Of course, if the  new or newly discovered fact shows the claimant to have been innocent then it ought to follow that no reasonable jury would convict.  Viewed like this, Category 1 seems to come within Category 2.  If this is right, then the distinction between Category 1 and 2 either disappears or might only be truly relevant to the amount of compensation.  However this may be, the distinction between Categories 1 and 2 is now in the Supreme Court's case law.

The amount of compensation to be awarded to successful claimants is decided by an assessor appointed in accordance with Schedule 12 of the Criminal Justice Act 1988.  There are limits to compensation payments - see sections 133A and 133B.  (Those additional sections were inserted by the Criminal Justice and Immigration Act 2008).  Section 133A gives some indication of factors to be considered in deciding the amount.

Compensation for miscarriage of justice is considered in a House of Commons Briefing Paper August 2012.   A controversial reduction in compensation was approved by the House of Lords in O'Brien and others v Independent Assessor [2007] UKHL 10.  The thinking behind the O'Brien case was that claimants should not be over compensated and that a deduction was appropriate for living expenses which would have been incurred had the person not been convicted.

One of the claimants was Barry George who, at a retrial,  was acquitted of the murder, April 1999, of Jill Dando.   The Administrative Court upheld the refusal to pay him compensation since there was a case upon which a reasonable jury, properly directed, could have convicted the claimant of murder.  It is understood that an appeal is under consideration - BBC News 25th January 2013.  Ian Glen QC - acting for George - argued that not treating George's acquittal as a miscarriage of justice "went behind the decision of the jury that acquitted him" and failed to take account of the fact that no safe conviction could ever be based on the evidence against him. 

Only one of the 5 claimants was successful.  Ian Lawless was convicted in 2002 of the murder of Alfred Wilkins.  The conviction was based on certain 'confessions' later shown to be unreliable.

Note:  The former ex gratia scheme was closed down by government from 19th April 2006.   The decision to close it (by Home Secretary Charles Clarke) was judicially reviewed - unsuccessfully (judgment here).  In the Adams case (at para 74) it was noted - The new statutory right superseded in part the existing scheme for ex gratia payments, which remained in being until April 2006, when it was terminated both in England and Wales and Northern Ireland. This has had the inevitable, but unfortunate, consequence that claimants in those jurisdictions are now dependent solely upon the scheme provided by the statute. The ex gratia scheme which has been operated in Scotland by the Scottish Ministers still remains in force there, alongside the system for the payment of compensation in respect of all reversals of convictions that fall within section 133 of the 1988 Act. This enables those against whom criminal proceedings were taken which can properly be regarded with hindsight as wrongful to be compensated even though their cases cannot be brought within the
terms of the statute.'

An ex gratia scheme continues in Scotland

See The [Justice] Gap - New campaign to right monstrous wrong

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