A leading academic has lent his weight to a new campaign for proper compensation for the victims of miscarriages of justice. Professor John Spencer QC, of Cambridge University, has damned New Labour’s abolition of the old, ex gratia scheme as ‘monstrous’ and is calling upon the coalition government to ‘right this wrong’.
Five years ago the then Home Secretary, Charles Clarke decided without consultation to abolish an ex gratia scheme to compensate the victims of miscarriages. The only compensation now available comes via the Criminal Justice Act 1988, section 133 – ‘a very mean provision’, according to John Spencer, enacted to put the UK in minimal compliance with its international obligations.
In May this year the Supreme Court rejected the government’s arguments that only those who could prove their innocence could be entitled to compensation in R (Andrew Adams) v Secretary of State for Justice. It had to grapple with the meaning of ‘miscarriage of justice’ allowing appeals by Raymond McCartney and Eamonn MacDermott convicted in 1979 of murder and membership of the IRA but who had their convictions quashed in 2007. But the nine-strong panel rejected a challenge by Andrew Adams whose case was joined with the Irish cases. Adams spent 14 years in jail before his murder conviction was quashed following the discovery that information that would have helped his cross-examination of witnesses but was overlooked by the defence team.
The majority (five to four) held that a ‘miscarriage of justice’ had occurred when ‘a new or newly-discovered fact’ showed conclusively that the ‘evidence against a defendant has been so undermined that no conviction could possibly be based upon it’. Adams’ appeal failed because, even if the evidence that led to the quashing of his conviction had been available at his trial, a ‘reasonable jury’ might not have convicted him.
‘Innocence as such is not a concept known to criminal justice system,’ noted Lady Hale in her judgment. ‘The defendant does not have to prove his innocence at his trial and it seems wrong in principle that usually required to prove his innocence now.’
John Spencer in an open letter argues that Clarke’s scrapping of the scheme deprived not only those whose convictions were quashed in circumstances that leave their factual guilt or innocence in doubt (‘a group for whom some people’s sympathy, understandably, is limited’) but also those whose innocence is absolutely clear. The academic cited the case of Colin Stagg who was wrongly accused of the murder of Rachel Nickell – ‘a crime of which, as we now know, he was entirely innocent, as it was committed by Robert Napper’. He received compensation of over £700,000 under the old scheme but would now Spencer pointed out ‘get precisely nothing’.
So, the academic asked, how could the last government’s decision to abolish the ex gratia scheme be justified? Only, by an argument he paraphrased thus: ‘None of these people are really innocent – otherwise they wouldn’t have attracted the attention of the police. They’re not victims of miscarriages of justice, they’re just lucky. Too bad they didn’t get the punishment that they deserved; a good thing they had to spend at least some time in prison; and no way should we add to their undeserved good luck by handing them out compensation: except in those cases where, to our regret, our international obligations make it compulsory.’
Wrongfully Accused, a collection of essays looking at the investigation of miscarriages of justice as part of the Justice Gap series is due out later this month
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award