Reforming Compensation for Wrongful Conviction

Introduction

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.

And a key element of this is compensation.

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 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).”

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 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).” 

The test changed in 2014, when legislators added an additional section, Section 133 (1ZA) that significantly narrowed those entitled to compensation through the scheme.

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).

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.

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.

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.

Conclusion

The Justice Secretary’s action to remove the deduction for “saved living costs” from compensation claims was welcomed, it does little to address the shortcomings of a scheme that only compensates those who are demonstrably innocent or obviously wronged by the state.

The scheme fails to compensate those who are unable to prove that they did not commit the offence because of serious failings in the investigation by the police or prosecution, or those who are not able to produce exculpatory evidence, such as DNA.

The pending Strasbourg decision in the Hallam and Nealon cases will place the scheme back in the spotlight and together with the inquiries into the failings of the Malkinson case, there will no doubt be further developments in this area.

Anna Renou