Demonstrating Innocence - Compensation for Miscarriages of Justice  

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The case turned upon the proper interpretation of Section 133 of the CJA 1988, which required that an individual must demonstrate beyond a reasonable doubt that he has been the victim of a miscarriage of justice in order to qualify for compensation by the state.Section 133 was enacted to give effect to the UK’s obligations Article 14 (6) of the International Covenant on Civil and Political Rights, which also used the term “miscarriage of justice.”

Under the existing case law the relevant term had been interpreted as requiring an individual to show conclusively that he was in fact innocent of the offence. This gave rise to controversy not least because of the inherent difficulty that an individual may face in conclusively proving his innocence to such a high standard.

There were three conjoined appeals before the court: Adams, McCartney and MacDermott. The appellant Adams had his conviction overturned by the Court of Appeal on the basis that his legal representation had been incompetent; McCartney and McDermott by the Court of Appeal (Northern Ireland) having been convicted solely on the basis of confessions that had been extracted as the result of police ill-treatment or coercion.

The court noted that the term “miscarriage of justice” can be understood in various ways. It considered four categories of case in which the Court of Appeal would quash a conviction on the basis of fresh evidence:

• Where it showed a defendant was innocent of the crime (‘category 1’)
• Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (‘category 2’)
• Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (‘category 3’)
• Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (‘category 4’) (§9)

The court was in agreement that Category 3 and 4 cases were excluded from the legislation as in those circumstances it could not be established beyond a reasonable doubt that a miscarriage of justice had occurred. Accordingly, the appeal of Adams was dismissed.

However, the court held by a majority of five to four (the Lord Chief Justice being amongst the dissenting) that Section 133 extended to Category 2 cases as well as those falling under Category 1. Even though this interpretation would not guarantee that all those who qualified for compensation were in fact innocent, the proper test for what constitutes a “miscarriage of justice” was as follows:

“A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’ (§55)

The court considered that a miscarriage of justice in a case of that kind would be as great as it would have been if the individual had in fact been innocent, because the evidence is so lacking that in reality the individual would not have been prosecuted at all (§102.) Accordingly, the appeals of McCartney and MacDermott were allowed.

This is a welcome extension of the previous position and removes to a large extent the greatest objection to the previous regime, namely that it may often be impossible for an individual to demonstrate his innocence beyond a reasonable doubt. It will undoubtedly result in the award of compensation in a greater number of cases, although whether it does so in other cases such as those of Ian Lawless* and Barry George, which have been adjourned pending the outcome of Adams, remains to be seen.

* Mr Lawless is represented by Matthew Stanbury and Mark Newby of Quality Solicitors Jordans and was represented by Mark Barlow in criminal proceedings.

Commentary by Matthew Stanbury

Quick links

16/6/09 - Court quashes murder conviction of Ian Lawless

9/9/10 - Compensation scheme for miscarriage victims should be more flexible (Pete Weatherby interviewed for LexisWeb on the subject of Barry George's claim for compensation)