Campaigners are drawing attention to an attempt by ministers to prevent the victims of miscarriages from applying for compensation ahead of next week’s debate in the House of Lords on the Anti-Social Behaviour, Crime and Policing Bill.

Dame Ruth Runciman, chair of the Miscarriages of Justice Support Service Advisory Group, argues that the enactment of clause 151 would ‘fail to take account of the harm caused through wrongful imprisonment’.

Painting from the Koestler Trust awards (Kvetch – HMP Grendon, Buckinghamshire, Ariane Bankes Outstanding Award for Oil/Acrylic Painting 2008)

‘From our own experience of working with victims for more than 10 years,’ Dame Ruth writes. ‘Compensation not only provides financial redress for the years lost whilst imprisoned and for the many years post release while individuals live with, but fail to surmount, the consequences of the injustice, but it also gives recognition to an individual’s suffering and the wrong which has been done to them. The payment of compensation is the closest they will come to receiving an apology from the State.’ The Miscarriages of Justice Support Service (MJSS) is run by the Royal Courts of Justice Advice Bureau.

Under the present scheme, a victim of a miscarriage is eligible for compensation if they can show that they have been convicted of a criminal offence and that subsequently their conviction had been reversed on appeal, on reference by the Criminal Cases Review Commission, or pardoned on the ground that a new, or newly discovered fact showed beyond reasonable doubt that there has been a miscarriage of justice.

Ministers are planning to amend the Criminal Justice Act 1988, section 133 to further restrict eligibility to apply for compensation for miscarriages of justice to those who can demonstrate their innocence ‘beyond reasonable doubt’. The proposal comes under the Anti-Social Behaviour Bill, which include plans to anti-social behaviour orders and impose prison sentences of up to 14 years on owners of dogs that kill, has attracted very little attention and  follows on from New Labour’s clampdown on compensation pay outs.

• You can read Dame Ruth’s briefing in full HERE
• You can read Mark Newby on clause 151 HERE
• You can read Jon Robins on history of compensation for victims of miscarriages HERE

According to the briefing written by Dame Ruth, the question currently asked by the courts is: ‘Has the claimant 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?’

Rebalancing the criminal justice system
In 2006 Charles Clarke as home secretary scrapped an ex gratia scheme allowing compensation for victims of miscarriages as part of New Labour’s “rebalancing” of the criminal justice system.

‘It is perhaps the biggest miscarriage of justice in today’s system when the guilty walks away unpunished.’
Tony Blair

In a single sentence, as Helena Kennedy QC noted, the former PM ‘sought to overturn centuries of legal principle … whereby the conviction of an innocent man is deemed the greatest miscarriage of justice’.

As a result of Charles Clark’s intervention, the only people who now get compensation are those who have a statutory right under the Criminal Justice Act 1988, section 133.

In an open letter to the government published in 2011, Professor John Spencer QC, of Cambridge University, damned New Labour’s abolition of the ex gratia scheme as ‘monstrous’, and called on the coalition government to ‘right this wrong’.

Spencer argued that scrapping the scheme not only deprived of support those whose convictions were quashed in circumstances that leave their guilt or innocence in doubt, but even those whose innocence is clear such as Colin Stagg – wrongly accused of the murder of Rachel Nickell. ‘Stagg spent 13 months on remand before he was acquitted, and even after that, his life was ruined,’ wrote John Spencer. ‘Under the old law he was awarded compensation of over £700,000. Under the new law, he would now get precisely nothing. To his name, alas, a long list of others could be added: all equally innocent, and all equally unable to obtain compensation.’

The academic damned section 133 as ‘very mean’ and drafted to ensure that ‘so far as possible no one ever has a right to anything’.

The supreme court looked at the issue in R (Andrew Adams) v secretary of state for justice in May, redefining the meaning of what constituted a ‘miscarriage of justice’ in the context of a debate about compensation paid to people wrongly convicted of crime.

By a narrow majority, the judges held that a miscarriage of justice occurs when ‘a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it’.

The Royal Courts of Justice Advice Bureau has run the Miscarriage of Justice Support Service, funded by the Ministry of Justice, since 2002 to provide support for victims of miscarriages referred by the Criminal Cases Review Commission.

Dame Ruth says that they are ‘extremely concerned’ about clause 151. ‘We strongly believe the existing law should be retained,’ she argues. ‘… There is a great emphasis on saving tax payers’ money.’ An anticipated saving of an £100,000 a year is based upon resisting claims for judicial review. She continues: ‘The impact assessment does not recognise that, if this proposal was to go through, there would be a cost to the State of considerably more than £100k per year, as individuals are more likely to remain on state benefits potentially for life as a result of the miscarriage they have experienced.’

‘We can provide evidence to demonstrate the suffering that miscarriages of justice cause for individuals and know that they are more likely to experience difficulty in finding accommodation, in having their health needs recognised by government agencies and can lack skills and confidence to move into employment. We know that the consequences for individuals, and the cost to the state, increase if individuals feel that what is done to them lacks legitimacy. Compensation goes some way to addressing this.’
Dame Ruth Runciman

The effect of individuals being told they are not eligible for compensation causes them ‘great distress which in turn exacerbates the trauma they have suffered as a result of their wrongful imprisonment’. ‘This disappointment can have an adverse effect on the individual’s assimilation back into society,’ she says.

Dr Adrian Grounds, an advisory board member for the service, has reviewed psychiatric assessments of 54 wrongly convicted people post-release. The duration of the wrongful imprisonment averaged 10 years and ranged from three months to 25 years (22 of the 54 served eight or more years). According to Dame Ruth: ‘The clinical findings showed that complex and substantial psychiatric morbidity was evident, the wrongly convicted and their families faced daunting adjustment problems, and failures of engagement with mainstream services were common. Thirty-two had been in employment (or education) at the time of their original arrests. Only eight were in employment when assessed after release.’

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From Dame Ruth Runciman’s briefing:

‘It was clear from the interviews that the wrongly convicted and their families commonly faced psychological difficulties and problems of adjustment that were severe, bewildering, and unexpected.’

Typically, for years they had been focused on achieving the goal of release, but once this had been achieved there were painful discoveries that the wrongly convicted person had changed, there were losses that could not be remedied, and the lives they previously had could not be recovered. For those who had been in prison for many years, initially after release it could be difficult to cope with everyday tasks such as crossing roads, shopping, and sharing a home with others. Some still felt stigmatised in their communities, sensing that neighbours and police officers still regarded them as guilty. Some became very anxious about going out, fearing hostility or re-arrest, and many became isolated.

Typically when convictions were quashed the wrongly convicted person was released suddenly without any of the careful preparation and aftercare provided to other prisoners. Those who returned to families described the emotional experience as overwhelming, and families in turn could find the behaviour of the wrongly convicted person upsetting. Some found it difficult to cope with social company and conversation, and they isolated themselves in rooms which they kept as their prison cells had been. Men and women who had young children at the time of arrest could find it difficult to relate to the – now older- children properly because of the lost years of parenting, and this could cause serious conflict and distress. The wrongly convicted and their families could seem like strangers to each other, and lost intimacy and closeness could not be restored. Some admitted that the years of imprisonment had been easier to cope with than the years since release.

Psychiatric morbidity during imprisonment and after release was common. (Most did not have prior histories of psychiatric illness). Many of the wrongfully convicted were described by friends and families as changed in personality: they had become more withdrawn, mistrustful, estranged, and difficult to live with. Some had post-traumatic stress disorder, with symptoms such as such as nightmares and anxiety attacks relating to exceptionally threatening specific events. Longstanding and serious depression was common and some used alcohol or drugs to reduce feelings of distress. Often they found the enormity of their personal losses impossible to face and bear. In addition, some were consumed with anger and bitterness because they could not accept the legitimacy of what had happened; there had usually been no apology, and those they perceived to be at fault in the prosecution had not been brought to justice. Commonly they found it difficult to obtain the specialist help they needed from NHS mental health services, and compensation could assist in funding psychological treatment from the private sector.

We believe the enactment of clause 151 would fail to take account of the harm caused through wrongful imprisonment.

For further information contact, Alison Lamb, Chief Executive at RCJ Advice Bureau (alison.lamb@rcjadvice.org.uk)