Whitehall moves to curtail compensation for miscarriages of justice to support victims of crime have infuriated lawyers. So what is the problem? Grania Langdon-Down reports

Home Secretary Charles Clarke’s sudden announcement last month that he has abolished the discretionary scheme for compensating victims of miscarriages of justice, and will seek to cap the statutory scheme to save £5 million, has left practitioners outraged at the further injustice this will cause people whose lives have already been devastated by the state.


Jane Hickman, managing partner of Hickman & Rose in London and secretary of the Criminal Appeal Lawyers Association (CALA), is incensed by Mr Clarke’s claims that the current system overcompensates ‘undeserving’ cases, overcompensates people compared with victims of crime, and overpays lawyers.


‘Victims of miscarriages of justice may have spent years suffering the excruciating pain of being in prison for something they haven’t done and watching the years tick by,’ she says. ‘Their entire life course will have been changed. In what sense is it right to say we shouldn’t recompense these people fully when it is the state that is at fault?


‘The government might as well say it is not going to compensate you if you are hit by a police car and the money will go to victims of crime. Why stop at police cars – why not any government vehicle?’


The statutory scheme is only for those with out-of-time appeals who are cleared on fresh evidence, while the discretionary scheme only compensates those who can show either serious fault by a public official or complete exoneration. Mr Clarke’s written statement on 19 April came without consultation. He said that the discretionary scheme, set up in 1985, costs more than £2 million a year to operate, with awards going to just five to ten applicants. The statutory scheme, created by section 133 of the Criminal Justice Act 1988 to meet international obligations, pays out about £6 million. The highest award is £2.1 million, with payments averaging £250,000. Almost 10% of that amount is paid in legal fees.


In contrast, he said, no legal costs are payable under the scheme for victims of crime, who receive on average less than one-fiftieth of the amount paid to victims of miscarriages of justice. His changes, he claimed, would simplify and speed up the system and save £5 million, which would go towards supporting victims of crime.


So he announced that ‘with immediate effect’ no new applications would be dealt with under the ‘confusing and anomalous’ discretionary scheme; those eligible under the statutory scheme must get all details backing their claim in within six months to the independent assessor Lord Brennan QC, a former Bar Council chairman; and legal aid fees would be cut to the lowest Legal Help level for both new and existing applications.


Legislation is to be introduced so that awards under the statutory scheme can be capped at £500,000 and, in exceptional cases, previous convictions or the applicant’s ‘contributory’ conduct will mean an award can be reduced to zero.


Mr Clarke has also embarked on an ‘urgent’ review, with the Lord Chancellor and the Attorney-General, of the statutory test used by the Court of Appeal when deciding whether or not a conviction is ‘safe’, to see to what extent ‘an error of the trial process necessarily means a miscarriage of justice’. One option, he suggested, may be to introduce a ‘not proven’ verdict.


And the reaction from practitioners? Callous, disreputable, mean, appalling, pointless and morally and legally wrong, they say. Such is the anger that campaign organisation Justice, which condemns the changes as a ‘cynical attack’ on people who have already suffered at the hands of the state, the CALA and the Miscarriages of Justice Lawyers Group have got together to lobby MPs. One idea is to press for an amendment to any new legislation to bring those now excluded into the statutory scheme.


Nogah Ofer, a partner in Hickman & Rose’s civil department and convener of the Miscarriages of Justice Lawyers Group, says: ‘We are completely horrified by these changes. The most Draconian is to abolish the discretionary scheme without consultation, which is in breach of Cabinet guidelines. There have been discussions about bringing judicial review challenges by those whose applications haven’t yet been submitted on the grounds they had a legitimate expectation that the scheme would not be abolished overnight.’


She says the whole basis for Mr Clarke’s claims is misleading, because it suggests people are being compensated after getting off on technicalities.


Celebrated cases, such as the Cardiff Three, who spent four years in prison for the 1998 murder of a prostitute, would now be excluded. Ms Ofer says the men received compensation under the discretionary scheme but today, because they got out on their first appeal, ‘they wouldn’t get a penny even though the Court of Appeal was horrified at the oppressive interview with one of the defendants, and the real killer pleaded guilty’.


She dismisses Mr Clarke’s claim that those no longer eligible for compensation should go through the civil courts. ‘There will be cases where people can sue but that will just mean more spending of public funds on civil claims, which will be defended by the state and brought under legal aid. If even a quarter of those cases sue, you will end up with far greater expenditure than if you provided compensation.’


Ms Ofer says the timetable for submitting supporting evidence for claims will be ‘unworkable’ in some cases, given the need for psychiatric, employment and financial reports. She is also angry at the £500,000 cap. ‘This will affect those who have spent very long periods in prison. For society not to find it in their hearts to give them reasonable compensation is such a mean approach.


‘It is also completely wrong to pit victims of miscarriages of justice against victims of crime. The fact that victims of crime get pitiful awards isn’t a reason to penalise victims of miscarriages.’


Campbell Malone, chairman of CALA and a consultant with north-west firm Stephensons, agrees. ‘Victims of crime are compensated by the state out of sympathy, because there is no other way they will get compensation. With victims of miscarriages, it is the state which is the perpetrator and it has an obligation – both moral and legal – to compensate them.’


For Richard Miller, director of the Legal Aid Practitioners Group, the suggestion that compensation claims are a ‘massive industry for lawyers’ is outrageous. One of the things that enabled practitioners to take on the claims was that if they were successful, they would get their costs back at private rates of about £150 an hour. Now they will be paid the lowest rate, which is £50 an hour.


‘But these are extremely complex cases,’ he says. ‘So either it won’t be economic for practitioners to take them on, or they will be passed down to the lowest-grade fee-earner, which may mean cases are not dealt with as thoroughly, so both the system and the individual loses.’


Another option is for solicitors to charge private rates and take their fees out of the compensation, but that will further punish the victim, says Ms Ofer.


When it comes to the review of the test for quashing convictions, Mr Malone says practitioners are bewildered by Mr Clarke’s suggestion that the Court of Appeal may be quashing them on technicalities. ‘Anyone with any experience of appeals can quote many examples where they have established the argument they took to the court, but the judges have decided that, having looked at the wider evidence, they are still satisfied the conviction is safe.


‘Some of us detect a move away from the House of Lords’ guidance in R v Pendleton [2001] UKHL 66 that the appeal court’s job is to determine the safety of the conviction, not the guilt or innocence of the appellant.’


Ms Hickman says the idea of a not-proven verdict is ‘completely baffling’ and undermines the whole basis of the presumption of innocence. ‘If the court has any remaining concern that a person is not innocent, then they order a retrial.’


She says the Home Office is guilty of a piece of ‘master spin’ to suggest that this was supported by Lord Justice Auld. She was one of his advisers during his 2001 review of the criminal courts. ‘He said the very opposite, arguing that the test ought to be reviewed because it was inconsistent with European convention rights, which hold that if a trial is unfair, the conviction is unsafe.’


Lord Justice Auld confirms to the Gazette that his view on the statutory test for criminal appeals has not changed since his 2001 report on criminal courts. ‘My concern was, and is, to resolve the uncertainty in the jurisprudence of the Court of Appeal, Criminal Division, as to the meaning of an “unsafe” conviction in the statutory test, in particular, in its relationship to the concept of a fair trial and the jurisdiction of the courts to stay a prosecution for abuse of process.’


As lawyers now draw up plans to lobby against the changes, Mr Malone sums up their likely impact: ‘They will save very little – but will send a message that we don’t care about justice.’


Grania Langdon-Down is a freelance journalist