ANALYSIS: It might be assumed watching an appellant being released from the Court of Appeal that he or she will be compensated by the state for being wrongfully convicted and for all the time they have served in prison, writes Mark Newby. That expectation is invariably not met at all and under the current Ministry of Justice scheme only one award has been made since its inception.
As a result the courts have been exercised for some time in considering when and in what circumstances a person should be compensated and this recently came to a head when on 19th October Irwin J and Beatson J reserved judgment following a three-day hearing on the future of miscarriage of justice compensation payments. The hearings proved to be a rigorously fought battle over when and in what circumstances the Secretary of State for Justice was compelled to award compensation.
- This article deals with the arguments that arose in the cases of George, Lawless, Tunbridge, Dennis and Ali – the test cases selected.
- The second article will deal with the decision of the court when issued and the implications for the future of those wrongfully convicted.
- You can download Wrongly Accused: who is responsible for investigating miscarriages of justice? (published as part of the JusticeGap series) HERE.
For the reader it is best to start from an understanding of the approach in the first place which was brought together in the case of Adams  UKSC 18 (PDF). Like many areas of the law now the court has conveniently split the claims for miscarriage of justice compensation into three categories:
- Category 1 claims
Where the applicant can effectively prove innocence for example where evidence actually proves it was somebody else who committed the crime.
- Category 2 claims
Evidence, which undermines the safety of the conviction to the extent that no reasonable jury would convict. In this scenario the claimant may fall short of being able to prove his innocence but there may be an underlying assessment that the applicant probably is.
- Category 3 Claims
This is where the fresh evidence might be sufficient for the court to quash the conviction but there may be other evidence upon which a jury could still convict if properly directed. It may arguably cover also purely technical quashing’s on misdirection’s although in Adams it was suggested this might also fall into a fourth category.
Whatever the arguments, two things are clear: No compensation award will be paid unless the claimant can establish he falls within category 1 or 2 and, of course, the case would have to be based on a newly discovered fact in order to meet the test. In addition there are other stipulations within the scheme for example that the appeal must have been out of time.
The reader should bear in mind that this is a statutory scheme and as opposed to the preceding ex gratia scheme is intended to be much more restrictive in its awards. Indeed it has achieved that aim because as indicated only one award has actually been made in the Scheme since inception.
The arguments before the court
What then were the arguments before the court?
Well for the purposes of these hearings and this article no concentration was given to category 1 cases, although sensibly the court did recommend that a policy could be promulgated on how a category 1 case should be established.
Rather the arguments that arose in the case might be best summarised as follows:
- What amounts to a category 2 case and when might it fall outside of that category?
- How should the Secretary of State approach his assessment of a case and what must he take into account and what may he disregard?
- What is the effect of a re-trial either proceeding all the way to a Jury Verdict or stopped earlier?
- Can the Secretary of State be challenged under normal Judicial Review Principals or is the court actually entitled to look further into the facts of the cases and make recommendations?
- Do these cases and the Secretary of State’s approach engage Article 6?
All of these considerations need to be placed in the context of the overriding question for society namely:
Should those who are wrongfully convicted and find themselves incarcerated often for lengthy periods be compensated in any event? There is little doubt that here there is a divergence between the expectations of the public and the highly technical and often artificial process that now confronts the court.
To be Category 2 or Not
The easiest way to understand this is by reference to some examples from the test cases themselves.
In Lawless the claimant was convicted of murder based solely on his own confessions which in due course were held to be unreliable at his appeal by both defence and prosecution experts. The appeal was not opposed and of course the Crown did not seek a re-trial because there was no evidence upon which a re-trial could be based.
Here the claimant fell squarely within Category 2. Although it was very likely he was innocent he clearly couldn’t adduce evidence to actually prove that.
In Ali, the claimant was convicted of allegations against his partner but his appeal came to quashed following evidence of a telephone conversation in which it was said that the allegations were untrue and that the injuries were self inflicted.
The expert evidence considered a detailed assessment of the audio and the source but due to failure to provide voice comparisons to the sufficient level required no conclusive opinion could be reached to establish with certainty that it was the complainant.
As the court opined during these hearings if indeed it could have been established without doubt that it was the partner of the claimant then it would have fallen into category 1 as it was the argument clearly advanced is that this fell squarely within category 2.
The Secretary of State’s approach
The test cases highlighted a number of potential errors in the approach taken to the assessment of the cases.
The nub of the issue seemed to arise over how the Secretary of State approached the test formulated by Lord Phillips in Adams namely in assessing whether on the state of the evidence any jury properly directed could reach a conclusion that there was evidence upon which they could be satisfied beyond reasonable doubt of the claimant’s guilt.
This was further exemplified by the Secretary of State’s desire to treat any ruling by the trial judge as simply a factor to be taken into account rather that as strongly persuasive of the position. Simply put the Secretary of State saw nothing wrong in disregarding the rulings of the Judge or indeed so far as the case of George was concerned in the verdicts of the jury.
This of course raises a potential problem for the court in assessing whether the Secretary of State is taking a proper and rationale approach to the assessment of these cases. Should it ever be acceptable for the Secretary of State to disregard proper judicial scrutiny of a case and to simply be able to step aside from such rulings and make his own determination of the state of the evidence afresh.
This was an approach heavily criticised by the Claimants. For example Matthew Stanbury Counsel for Lawless pointed to the fact that the Secretary of State presented as desperately seeking to avoid compensating every claimant on a collection of irrational reasons.
Take for example Lawless where the Secretary of State sought to go behind not only the court’s assessment, the Crown’s decision not to seek a re-trial because there was no evidence left to do so but also then to challenge the expert evidence from both the Crown and defence.
That does not mean that in every case the rulings had to be accepted without question as the court noted there could of course be exceptional cases where such an approach might occur and there may be instances post quashing where the situation changes or facts come to light either in favour of or against the claimant which might given rise to an argument that the significance of the judges ruling might have less relevance.
It was submitted however by the claimants that it would be wrong as a matter of policy to step aside from proper judicial consideration as a matter of routine and this is not the basis of assessment which their Lordships in Adams had anticipated.
Re-trial and the effect on a claimant’s route to compensation
A significant feature in cases such as George and Dennis was the issue of re-trial and the effect that this should have on the assessment of compensation claims. That is to say should a person still be compensated if after their conviction is quashed they face a re-trial .
The reason for this is obvious in that it potentially raises the spectre that if post quashing there is sufficient evidence for a re-trial then this may amount to material to support an argument that the case does not fall within Category 2.
It was suggested that there had over time been an effective change in policy and that in the past there had been no bar to compensation simply because there had been a re-trial. After all a person who has their conviction quashed has little choice if the Crown seek and the court orders a re-trial.
As was submitted in Dennis if during a re-trial a judge proceeds to dismiss the case and does not allow it to go before a jury then this may add significant weight to an application that the claimant is entitled to compensation. Arguably such a decision at that stage might be of even greater significance than the review at the Court of Appeal stage, which may have focused on a specific feature of fresh evidence only. So for example in Dennis it was contended that the case after further scrutiny at re-trial became even more weakened than it was before the Court of Appeal .
In George an alternative argument is taken as this case proceeded all the way to a Jury verdict despite a half time submission, which did not succeed. Very High profile cases such as George, which inevitably would be subject to a re-trial, would have called out for a jury’s verdict and as George’s counsel Ian Glen QC pointed out in the hearings there could be no more determinative answer to the matter than the jury’s second verdict.
What became clear from the arguments in these cases is that a very careful approach to the issue of re-trial is required and the question of the approach to the re-trial and any rulings by the Judge needs to be carefully scrutinised. No claimant can fall foul of the scheme simply because he has faced a re-trial.
To remit or not to remit that is the question
One of the ancillary questions that have arisen is whether ordinary Judicial Review principles apply or whether the court can go further and scrutinise the facts of each case to the extent that the court can make clear its views of the eligibility of the claimants.
Perhaps the nature of the test cases call themselves for the latter approach to be taken by the court so that future claimants have a model of the sort of cases will succeed.
Alternatively the court could choose to remit the cases back to the Secretary of State for redetermination having quashed the decisions if it decides to do so. The danger with that approach at this stage however is that this may only lead to further decisions which have to be subject to further challenge.
It is hoped that the Court will choose to grasp the opportunity to give clear and careful guidance by reference to the cases before it.
Is Article 6 engaged in these cases?
The question arises out of the provisions of article 5 and the right to compensation if unlawfully detained and the right to a fair trial of the issue in accordance with article 6.
It is a highly relevant issue as the European Court of Human Rights is shortly also to consider two cases (Allen and KF) on the issue of the compensation scheme and the negative effect of the current scheme on the presumption of innocence. The argument being whether the current scheme operated by the United Kingdom is in contravention of the presumption of innocence entrenched by the European Convention in these circumstances.
The principles are well established by Georgiadis v Greece  and the principle of an effective compensation system was clearly established in accordance with Article 3 of Protocol 7 of the European Convention of Human Rights namely that:
‘The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be an acknowledgement that the person concerned was clearly innocent.’
The Secretary of State relies on the case of Cheung and argues that the exercise of the Judicial Review process by the Court is sufficient to deal with the issue of the engagement of Article 6. The claimants however contend that they may be an inadequate answer to the issue particularly where the Secretary of State is applying himself much wider that the judicial interpretation or assessment of any particular case to achieve virtually no payments out under the scheme.
The court will be assessing whether Article 6 is engaged in these cases and if so the nature and extent of that engagement and what is needed to adequately address it.
Some concluding thoughts
It seems from the hearings that we will at least get some definitive guidance as to how the Supreme Court’s views in Adams should actually be interpreted on the ground.
What this judgment will not achieve is a resolution of the expectations of the public view of compensation for those wrongfully convicted. There will be many appellants who despite successfully quashing their convictions will remain uncompensated by the state and this raises key public policy and fairness issues.
Can it ever be right for the state to lock up individuals for many years and then not compensate them for that lost time? Save for where a person who may be guilty achieves a technical quashing. The answer should consistently be no.
But that is an argument for another day – or perhaps for the European Court – what is important right now is to resolve the difficulties that continue over the definition of Category 2 Cases, how the Secretary of State should approach assessment and what the view of re-trial cases should be.
Until this is done we will remain in a perverse state of affairs in which the Secretary of State operates a compensation system that is not paying out claimants.
A scheme that is operated irrationally to refuse virtually all applicants is no scheme at all and it is hoped that from these test cases will emerge a fairer system that will ensure that where it is fair and just to do so claimants will achieve an award. They should do so where no reasonable jury properly directed would convict them and that assessment should start from the perspective of focusing on any judicial guidance already available in the case.
Mark is a solicitor advocate and criminal law specialist with QualitySolicitors Jordans. He is an advisor to the Innocent Network UK and has overturned a number of high profile wrongful convictions - notably the cases of Ian Lawless and Anver Sheikh who overturned his conviction on his third appeal.