Wednesday, 11 May 2011

Supreme Court - Compensation for miscarriage of justice cases

Payment of Compensation for Miscarriage of Justice - some initial thoughts

The Criminal Justice Act 1988 s133 provides for compensation - "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." 

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

What does the phrase "miscarriage of justice" mean for the purposes of s.133?  This was the issue before a nine judge Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18.  [Judgment in two cases from Northern Ireland - MacDermott and McCartney - were given at the same time].   A further issue, in the case of Adams, was what was a "new or newly discovered fact."

All the appellants had been convicted of murder but had their convictions quashed and they all claimed compensation under s.133.  The Secretary of State argued that the men had not shown that a "miscarriage of justice" had occurred.

The phrase miscarriage of justice was capable of different meanings.  The Supreme Court set out four categories based on the judgment of Dyson LJ (as he then was) when the Adams case was in the Court of Appeal (Criminal Division) - (here)

Category 1 - the fresh evidence shows the person to be innocent;
Category 2 - had the fresh evidence been available at the trial, no reasonable jury could properly have convicted the defendant
Category 3 - Where the fresh evidence rendered the conviction unsafe in that, had it been available at the trial,a reasonable jury might or might not have convicted the defendant
Category 4 - Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted

The court noted that the primary object of s.133 was to compensate a person who had been convicted and punished for a crime which he had not committed.  The court eliminated Categories 3 and 4 from the scope of s.133.  Category 3 was outside s.133 since the section required that the miscarriage of justice had to be shown beyond a reasonable doubt.  Category 4 was outside s.133 because it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilty of the convicted person - an example was the Mullen case decided by the House of Lords in 2004.

Category 1 cases were clearly covered by s.133.   A majority (5 to 4) held that s.133 was not restricted solely to Category 1 cases.  To so restrict it would deprive of compensation some who were in fact innocent but could not establish this beyond reasonable doubt.  The majority stated - "A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based on it."

The wording of this formula is different to the wording used to describe Category 2.  Clearly the formula includes all Category 1 cases and goes to some extent beyond that. 

According to 4 of the justices, the phrase "new or newly discovered fact" was to be
interpreted generously so as to include facts the significance of which was not appreciated by the defendant or his advisers during the trial.    However, Lord Hope disagreed saying that material disclosed to the defence by the time of the trial could not be said to be new - (a literalist interpretation).  The other 4 justices argued that there should be a reasonable explanation for the failure to adduce the evidence at the trial.  The outcome of the case on this point, given the differences of opinion, can hardly be said to be satisfactory.

On the facts of the cases, Adams was not entitled to compensation.  His was a Category 3 case and did not fall within s.133.  The appeals of MacDermott and McCartney were allowed as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based on it.

The Supreme Court's Press Summary of this important case is available.  Section 133 gives effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966. and section 133 adopts almost identical wording to Article 14(6).

The Guardian 11th May 2011 looks at the judgment and links to the potential for considerable sums in compensation to become payable.  Solicitor's Journal 11th May 2011 also considers the case.


  1. I agree that Barry George should be compensated, however, in my view, it would be a grave miscarriage of justice, for example, if Siôn Jenkins is awarded compensation.

  2. Is there no law for compensating victims of CIVIL white collar crimes?


  3. @ Sabine - English law does not recognise CIVIL crimes. Something is either an offence or it is not.

    This post is concerned just with the Supreme Court decision relating to miscarriage of justice cases. In relation to victims of violent crime there is compensation for criminal injuries.

    Those victims who have lost money do not have a compensation scheme and are left to whatever civil action there may be against those who have caused the loss. Such actions can be massively difficult.

    In some situations, Ombudsmen are able to help - e.g. Barlow Clowes - resulted in some "ex gratia" payments to investors - the government was very reluctant to pay out for its maladministration.

  4. A most interesting debate on UK Human Rights blog about the Adams case.

    Have a look at Pardon and Amnesty - when is there money in it?

    The UK Human Rights blog post looks at the Adams case and the very interesting subject of the South African Truth and Reconciliation Commission.