Sunday 14 July 2013

Compensation for Miscarriage of Justice ~ Allen v United Kingdom

On 12th July, the European Court of Human Rights Grand Chamber gave judgment in Allen v United Kingdom - JUDGMENT - The Guardian 12th July.   The case concerned the refusal to grant compensation to a mother acquitted of the manslaughter of her four-month old son, following the quashing of her conviction.  The E Ct HR held, unanimously, that there had not been a violation of Article 6  of the European Convention on Human Rights.

On 7 September 2000 Ms Allen was convicted of the manslaughter of her four-month old son and sentenced to three years’ imprisonment. The conviction was based on evidence given at her trial by expert medical witnesses who testified that her son’s injuries were consistent with “shaken baby syndrome”, also known as “non-accidental head injury” (“NAHI”), because of the presence of a triad of intracranial injuries.

In her appeal, Ms Allen claimed that new medical evidence suggested that the triad of injuries could be attributed to a cause other than NAHI. In the meantime, she was released from prison, having served her sentence.

On 21 July 2005 the Court of Appeal (Criminal Division) (“CACD”) quashed Ms Allen’s conviction on the grounds that it was unsafe. It found that the new evidence might have affected the jury’s decision to convict Ms Allen. The prosecution did not apply for a re- trial given that, by the time Ms Allen appealed her conviction, she had already served her sentence and a considerable amount of time had passed.

Ms Allen lodged a claim with the Secretary of State under section 133 of the Criminal Justice Act 1988, which provides that compensation shall be paid to someone who was convicted of a criminal offence but has subsequently had that conviction reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Her claim was refused on 31 May 2006. 

She brought judicial review proceedings challenging this decision. Her claim was dismissed by the High Court in December 2007. It concluded that, in Allen's appeal against conviction, the CACD had only decided that the new evidence, when taken with the evidence given at trial, “created the possibility” that a jury “might properly acquit” Ms Allen. Her appeal was subsequently dismissed by the Court of Appeal in July 2008. Noting that the acquittal decision did “not begin to carry the implication” that there was no case for Ms Allen to answer, the Court of Appeal concluded that the test for “miscarriage of justice” had therefore not been made out.

Leave to appeal to the House of Lords was refused in December 2008.

The European Court of Human Rights found that the legislation under which Ms Allen had requested compensation did not require her criminal guilt to be assessed and did not question her innocence. Furthermore, the UK courts had considered, as they were required to do under that legislation in order for compensation to be awarded, whether any “miscarriage of justice” had taken place and had concluded that the existence of a miscarriage of justice had not been established beyond reasonable doubt.   They had not questioned the conclusion in her criminal appeal that her conviction was unsafe and had not commented on whether Ms Allen should be, or would likely be, acquitted or convicted on the basis of the new evidence which had led to the quashing of her conviction. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered. Therefore the language used by the UK courts in their decisions to decide on compensation had not undermined Ms Allen’s acquittal or treated her in a manner inconsistent with her innocence.

Justice Minister Damian Green MP is reported to have said - "I am pleased that the European Court of Human Rights has agreed with the judgment of our domestic courts and agrees that compensation is not applicable in this particular case." - BBC 12th July

Cases where new evidence proves innocence beyond a reasonable doubt will be the exception.  More usually, the new evidence raises some degree of doubt which, had it been presented to a jury, may have altered the jury's verdict.  The compensations scheme under section 133 pays lip-service to the UK's international obligations (under Article 14(6) of the International Covenant on Civil and Political Rights 1966).  A parallel 'ex gratia scheme' was abolished by the Labour government - a reminder that parsimony is not confined to the present coalition - see Justice Gap.

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