ISSUE 53 Expert Witness Journal - Journal - Page 7
Reforming Compensation
for Wrongful Conviction
by Anna Renou - www.mountfordchambers.com
Having spent 17 years in prison and 20 years fighting
to clear his name, one imagines that after the relief of
having done so, Andy Malkinson’s next focus is on
rebuilding his life.
The test changed in 2014, when legislators added an
additional section, Section 133 (1ZA) that significantly
narrowed those entitled to compensation through the
scheme.
And a key element of this is compensation.
Section 133 (1ZA) CJA 1988:
“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 did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to
be construed accordingly).” (emphasis added).
Governed by a statutory scheme, the Justice Secretary
has discretion to pay compensation to a wrongly convicted person where the conviction has been reversed
as a result of new, or newly discovered fact, which
shows beyond reasonable doubt that they did not
commit the offence.
The scheme is capped to an amount of £1 million
where a person has been detained for at least 10 years,
and to £500,000 in all other cases. Since 2006, that
award was also subject to a deduction for “saved living
costs” whereby an amount was deducted from any
compensation for “room and board” for the period
they were incarcerated.
The amendment was criticised for requiring victims
of miscarriages of justice to prove their innocence.
The Nealon & Hallam litigation
The 2014 amendment was challenged by two
claimants, Victor Nealon and Sam Hallam, who were
unsuccessful in applying for compensation, despite
their convictions being ruled unsafe by the Court of
Appeal in 2014 and 2012 respectively. The Secretary
of State for Justice considered neither could demonstrate that the new evidence showed beyond a reasonable doubt that they had not committed the
offences.
The public outrage that followed Malkinson’s appeal
and a campaign by his lawyers, APPEAL, led to the
Justice Secretary removing the “saved living costs” element from the 2006 guidance. The amendment is
not retrospective and will apply only to payments
made after 6 August 2023.
The legal framework
The matter of compensation for the wrongly
convicted formed part of the International Covenant
on Civil and Political Rights 1966. Article 14 established the right to be compensated if a claimant’s conviction is reversed “on the ground that a new or newly
discovered fact shows conclusively that there has been a miscarriage of justice, unless it is proved that the non-disclosure
of the unknown fact in time is wholly or partly attributable to
him (the applicant).”
Perhaps particularly striking given the facts in
Malkinson, Victor Nealon’s conviction was considered
unsafe based on a new DNA test that produced a full
male DNA profile from a saliva stain on the victim’s
clothing that was not Mr Nealon’s but that of an
“unknown male”. However, the Court of Appeal in their
judgment considered that this fresh evidence “has not
‘demolished’ the prosecution case. But its effect on the
safety of this conviction is substantial” R v Nealon [2014]
EWCA Crim 574, para 35.
It became part of the domestic law under Section 133
of the Criminal Justice Act 1988 (as amended by
section 175 of the Anti-social Behaviour, Crime and
Policing Act 2014) (‘the CJA 1988’).
The challenge to the refusal of compensation was
brought by way of judicial review, heard by the High
Court ([2015] EWHC 1565 (Admin)), and considered
on appeal by the Court of Appeal ([2016] EWCA Civ
355) and subsequently the Supreme Court ([2019]
UKSC 2). Each tribunal rejected the Claimant’s arguments that section 133(1ZA) was incompatible with
the presumption of innocence contained in Article
6(2) of the European Convention on Human Rights
(ECHR) right to a fair trial. Taking their case to the
Strasbourg Court, it has now been heard by the Grand
Chamber in July 2023 and judgment is awaited.
The statutory scheme sets out that the Justice
Secretary shall pay compensation for the miscarriage
of justice where the applicant has been successful on
appeal satisfying the provision of Section 133 of the
CJA 1988 and crucially, if the conviction was reversed
“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 (the
applicant).”
EXPERT WITNESS JOURNAL
Conclusion
The Justice Secretary’s action to remove the
deduction for “saved living costs” from compensation
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