When you travel into Paris, it is possible to observe that those unpleasant aspects of inner city life that would otherwise detract from the aesthetic of the city are pushed to the suburbs – quarantined if you will – so that the capital is not sullied with the vulgarities of poverty and other societal ills. The same can be said for our criminal justice system which increasingly wishes to keep at an arm’s length, minimise or suppress its own terrible failings in the hope it can maintain confidence in the notion of justice and adherence of the rule of law.

Compensation for miscarriage of justice victims

The case of R (Adams) v Secretary of State for Justice [2011] UKSC 18 was a welcome decision to those representing the victims of miscarriages of justice. It broadened the narrow interpretation the state had given to section 133 of the Criminal Justice Act 1988, which many considered perpetuated, not cured, the primary injustice of those convicted but later acquitted.

The case referred to in the press as Barry George’s failed claim for compensation but which related to five Claimants and whose formal citation is R (on the application of Ali and others) v Secretary of State for Justice [2013] EWHC 72 (Admin) was the first challenge following the Adams case.

Section 133 was imposed on the United Kingdom as a result of its international obligations under Article 14(6) of the International Covenant on Civil and Political Rights 1966. It requires the State to provide a right to compensation. With characteristic simplicity that British legislators seem incapable of emulating it provides that the test for an entitlement to damages is where a new or newly discovered fact shows conclusively that has been a miscarriage of justice. These terms have exercised British judges considerably but following the Adams case, the view expressed by Lord Bingham in an earlier case resonated with the majority. That view was that miscarriages of justice encompassed not just those who were demonstrably innocent but also where failures of the trial process resulted in convictions which were later rendered unsafe.

The Four Categories

In Adams the Court of Appeal identified four categories of cases which could be considered miscarriages of justice and which the Supreme Court later adopted when delivering its judgment (with the exception of the second which was reformulated). These were:

1.            The appellant is demonstrably innocent (i.e. where some later evidence exonerates him)

2.            A new fact so undermines the evidence against the appellant that no conviction could possibly be based on it

3.            Fresh evidence cases which results in the conviction being considered unsafe but where a jury may still have convicted

4.            Investigatory or prosecutorial misconduct results in the conviction being quashed

In each of the Claimant’s cases, their convictions had been quashed by the Court of Appeal and applications for compensation had been made to the Justice Secretary which had been refused. Judicial review proceedings were followed.

The Test

The judgment is quite extraordinary. Far from the decision in Adams clarifying the position it appears the opposite is true. The Administrative Court dismantled the views of the majority in the Supreme Court to reach its own formulation of the correct test of category two cases. It departed from Lord Phillips’ formulation “with great deference” whilst impliedly criticising it for lacking practicality. The test the lower court came up with and which in its view “may be more readily useful to lawyers advising claimants” was:

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?

It is worth pausing here to consider that there is nothing in Article 14(6) that requires a Claimant to establish to the criminal standard that he has been the victim of a miscarriage of justice. The only nexus between that high standard and the Covenant’s provision is the use of the word “conclusively”. But with respect this may be a mis-reading of Article 14(6). The use of the word “conclusively” is clearly linked to the outcome of the appeal against conviction, not a subsequent application for compensation.  There are a number of serious flaws in this approach, including a requirement that a Claimant is not entitled to rely on the civil standard or that in bringing a criminal prosecution the Crown does not have to be satisfied beyond reasonable doubt that a reasonable jury would convict on the evidence but that there is a reasonable prospect of securing a conviction. Therein lies the absurdity about the current position under section 133 as applied in this recent case: the Claimant must demonstrate to a legal certainty that no reasonable jury could convict when the prosecution brought against him did not need to get near this high threshold.

The injustice this causes is apparent from the facts of some of the individual cases the court considered.

In Ali, the Court of Appeal had quashed his conviction for assault after the Court heard recordings of telephone conversations that the appellant said were of his wife (and during which she admitted making false statements to the Court). The Court of Appeal accepted the evidence was capable of belief and quashed the convictions. It also accepted the Crown’s conclusion that the complainant was avoiding contact with them for the purposes of rebutting the appellant’s evidence. His application for compensation was rejected largely because the complainant made a statement after the trial but which was not put before the Court of Appeal in which she denied being the person on the telephone. The new evidence the Secretary of State said “does not demonstrate beyond reasonable doubt that your client is clearly innocent”. What is interesting in the Ali case quite apart from the fact that this evidence was never tested through cross-examination is that had the complainant provided voice samples to the expert, it could probably have been shown to the requisite standard whether it was or was not her. In rejecting his claim and putting the absurdity of the current position under the lens the Administrative Court said the Crown were entitled to bring the claim notwithstanding the high chance of acquittal.

In Dennis a case of joint enterprise where the appellant was convicted with three others of murder the critical question at the trial was whether he was aware of the existence of the knife in the possession of one of the other three men. There was CCTV evidence and parts of this were the subject of expert evidence by a Michael Harrow which was later shown to be flawed. His conviction was quashed and he was later acquitted on re-trial. His application for compensation was rejected on the basis that there was enough evidence for the court to order a re-trial and therefore there was some evidence he was guilty. If there was such evidence then he could not discharge the burden of proof that he was in fact innocent.

The case that excited most interest was that of Barry George convicted of the murder of television presenter Jill Dando. His conviction was quashed and he was re-tried and acquitted. The Secretary of State rejected his claim for compensation on the basis that “nothing emerged during the course of the re-trial to demonstrate [Barry George] was clearly innocent of the offence”. The Administrative Court held that this decision was unimpeachable.

In the case of Ian Lawless who was convicted of murder largely on admissions to third parties that he was the lookout and had acted in a way after the murder which was consistent with the admissions made.  These admissions later proved to be unreliable based on the uncontested evidence of internationally renowned psychologist Gisli Gudjonsson.  On quashing the conviction the Crown did not seek a re-trial. The Secretary of State declined to award compensation but this was reversed by the Administrative Court on the basis that without the admissions there was no case for Mr Lawless to answer.

The residue of unresolved suspicion 

This state of affairs gives rise to a number of issues many of which are complex but which leave the objective viewer with a sense that for all our sophistication and legal evolution we are in fact regressing. It is demonstrably more difficult to get cases referred to the Court of Appeal – of the few that do go back – many fail (and this has to be the clearest basis for questioning the efficacy of the Criminal Cases Review Commission). When they are referred back the Court must apply a different test to that applied by the Secretary of State and therefore the question of innocence or guilt is rarely addressed. The residue of unresolved suspicion that exists in the aftermath of a successful appeal is being exploited by the Secretary of State who exercises it liberally within a context of an abstract standard of proof where, on his own admission (and with some approval from the courts) the normal rules of evidence do not apply.

There are a large number of cases where the United Kingdom courts have laid claim to having a system that is equal to or which surpasses international legal standards. The instance of compensation where justice has miscarried can never be one of them. It is perhaps apposite to return to Paris to conclude with a quote from Jean-Martin Charcot, who wrote: “why do we perceive things so late, so poorly and with such difficulty? Why do we have to go over the same set of symptoms twenty times before we understand it? Why does the first statement of what seems like a new fact always leave us cold? Because our minds have to take in something that deranges our original set of ideas, but we are all of us like that in this miserable world”.