On 12th November the House of Lords will sit in committee stage on a substantial parliamentary bill the Anti-Social and Behaviour, Crime and Policing Bill. As I pointed out, in a joint article with Matt Stanbury of Garden Court North Chambers HERE, on the back of the bill ministers slipped in a clause to restrict the compensation scheme for miscarriage of justice cases. Thanks to Isobel Williams for the sketch.
I turn briefly to the history of the matter so you can understand the draconian section the Lords are being asked to sanction. The position prior to the case of R on the application of Ali v SSJ [ 2013 ] Crim L.R. 587 was the House of Lords Decision in Adams  UKSC 18 (PDF) – 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 established 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.
Of course this is a statutory scheme – as opposed to the preceding ex gratia scheme – and is intended to be much more restrictive in its awards. It’s achieved that aim very successfully.
It should be made clear that under the test formulated in Adams effectively category 1 and 2 cases could only be considered. Technical quashing’s would not be compensated at all and it is important in considering what is now proposed to put this “elephant out of the room” in the government’s arguments.
The test as far as category 2 cases was further refined in the case of R on the application of Ali in which the divisional court looking at the practical application of Adams further refined the approach to be one of where :
“… so that a person will be regarded as having been the victim of a miscarriage of justice for the purposes of the statutory scheme (under the Criminal Justice Act, section 133) where he or she 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.”
It might be thought this was a pragmatic approach by the Divisional Court and would clear up any misunderstanding of the high bar to obtaining compensation.
However Damian Green, minister for justice, suggests not and that parliamentary intervention is required to clear up a confusing state of affairs. Of course, this is not the first time, as we have pointed out, that the Government has adopted a twin track approach to changing the law it does not find attractive and a sceptic might consider that the Government is seeking to sidestep the decision of the Divisional Court particularly as it is seeking to apply it retrospectively to all cases in the pipeline including any appeals or decisions arising out of R on the application of Ali v SSJ  Crim L.R. 587.
Section 151 says this:
(1) In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages
of justice) after subsection (1) there is inserted:
“(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).”
(2) Subsection (1ZA) of section 133 of the Criminal Justice Act 1988 has effect in relation to:
(a) any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and
(b) any application for compensation made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under sub section (3) of that section
What this amendment will mean is that any claim for compensation under current consideration will only be granted if the newly discovered fact shows beyond reasonable doubt that they are innocent.
This kills off completely category 2 cases. Only those very few people who can show they are innocent to the Criminal Standard of Proof will be eligible to compensation.
This will achieve the Government’s aim of limiting the award to a wholly exceptional award with perhaps a couple of people a year actually being eligible.
Many people who have clearly been wrongfully convicted and in likelihood are probably completely innocent of the crime they were convicted of will never achieve compensation because they will never be able to prove they are innocent.
That this is a concerning provision is not a matter you need to take my word for. Lord Hope who was part of the constitution of the Court in Adams said during debate on the second reading in the House of Lords on 29th October:
“That it is at least doubtful whether the test that this clause lays down will cover all cases of miscarriage of justice where it is just that compensation should be available.”
His Lordship went onto point out that:
“It is not difficult to envisage situations where sheer proof of innocence, whatever the standard might be—it does not really matter whether it is beyond reasonable doubt or just on the balance of probabilities—will be simply unattainable. No doubt there will be cases where DNA evidence will resolve the issue. However, that evidence may have been lost.”
Others in the hastened debate also raised concerns over the proposals whilst some members of the House suggested a change in the proof required for example Lord Brown of Eaton-under-Heywood suggesting that the test should be a balance of probabilities test as opposed to proof beyond reasonable doubt.
Lord Taylor of Holbeach responding for the Government continued to maintain that the history of the matter had led to a lack of clarity and the test postulated would return to them being able to show innocence in an open and transparent way.
This was of course exactly the position advanced by Damian Green in the House of Commons but as some of the better qualified of their Lordships noted this is not exactly the position at all. The reality being that the position now is perfectly clear and the motivation in the Bill as it currently stands is wholly to introduce further financial savings and limit the prospects of virtually all the wrongfully convicted in pursuing legitimate claims for compensation.
This raises fundamental questions as to whether as a society we can be happy to deny those who have been clearly convicted wrongfully any compensation for often the many years they have spent in custody.
The analysis so far fails to appreciate that in many cases there may be some shreds of evidence left notwithstanding the newly discovered fact which could be deployed against an accused. The proposal ignores the fundamentals of the criminal trial process and the fact that if what is left is insufficient to secure a conviction or safe to be left to a jury the Trial will not proceed and the defendant be acquitted.
That is different however to the approach on compensation where the Secretary of State will effectively adopt a reverse burden and say that whilst these shreds of evidence remain no compensation is payable. That will be so even if these strands of evidence are nothing more than prejudicial allegations or circumstantial material or suspicion upon which a criminal conviction could never be obtained.
The answer to all of this has already been given in was given in the case of R on the application of Ali v SSJ. If no reasonable jury properly directed could convict on what is left then the applicant is entitled to be compensated. No other formulation is required.
Their Lordships face a difficult task in an unrealistic timetable. The formulation they arrive at will have significant consequences for many people and will reflect what sort of society we are in the way by the way in which we treat the wrongfully convicted.
Author: Mark Newby
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.