Last week (11 May), the Supreme Court handed down its landmark judgment on what constitutes a ‘miscarriage of justice’ for the purposes of statutory compensation.
In two separate appeals, Andrew Adams, and Eamonn MacDermott and Raymond McCartney were appealing against a refusal by the secretary of state to award compensation on the basis that their successful appeals did not show that they were ‘clearly innocent’.
All three had their murder convictions overturned following a referral back to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission (CCRC).
The most relevant part of the statute for compensating victims of miscarriages of justice is section 133 of the Criminal Justice Act 1988, which states that compensation will be awarded: ‘(1)… when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice… unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted… (5)… "reversed" shall be construed as referring to a conviction having been quashed – (a) on an appeal out of time… (b) on a reference – under the Criminal Appeal Act 1995 [that is, following a referral by the CCRC]…’
The Supreme Court noted that section 133 provides no fixed meaning for the term ‘miscarriage of justice’.
However, it held that claimants for miscarriage compensation will not need to prove that they are innocent, but they will have to show that, on the basis of the new or newly discovered fact, they should not have been convicted, or that a conviction could not possibly be based on those facts.
On this basis, it was held by a majority that MacDermott and McCartney were eligible for compensation as their confessions, the only evidence that led to their convictions, were unreliable.
Adams’s appeal was unanimously dismissed.
Although incompetent defence representation deprived him of a fair trial, it did not mean that the jury would inevitably have acquitted him.
The Supreme Court judgment is to be welcomed for establishing that clear proof of innocence is not a requirement for compensation under the statutory scheme.
However, there remains scope for debate on what constitutes a miscarriage of justice and who should fall within the ambit of the statutory scheme.
The judgment fails to settle contentious cases such as that of Barry George, who also had his application for compensation refused because of his failure to prove his innocence at his appeal.
This is despite the fact that, when he was acquitted at his retrial, the Crown Prosecution Service declared that he had every right to be considered an innocent man.
However, the fact remains that, although he was acquitted in a retrial, it is still not clear following last week’s judgment whether he will now be deemed eligible for compensation should he make a reapplication.
Finally, the judgment means that a few more victims of miscarriages of justice may be officially recognised and compensated.
This will not ‘open the floodgates’. It applies only to a small number of successful appellants.
Section 133 is restricted to those who overturn their convictions on an out-of-time appeal or following a referral by the CCRC.
Crucially, the statutory scheme excludes all those thousands of successful appellants who overturn their convictions in a normal appeal in the Crown court and the Court of Appeal each year.
Following the abolition of the ex gratia scheme in 2006, which used to run alongside the statutory scheme, successful appellants who overturn their convictions in a normal appeal are left with no recourse to any form of redress.
This means that if victims such as Angela Cannings and the Cardiff Three overturned their convictions today they would receive no compensation from the state for the devastation they suffered.
Dr Michael Naughton is director of the University of Bristol Innocence Project