Guest blog: Samuel Linehan, winner of the Bar Council Law Reform Essay Competition 2016

26 January 2017

Compensation for victims of miscarriages of justice

Samuel L

I became aware of the issue of compensation for miscarriages of justice as a result of recent coverage of some high profile cases. Victims of miscarriages of justice are, in a sense, indirect victims of crime. In legal terms, the error is corrected on successful appeal. However, the significant personal consequences arising from the stigma of a criminal conviction and sentence are not addressed in court. Fair compensation would help victims to deal with the effects of their experience, and increase the legitimacy of the criminal justice system. 

This was recognised by the establishment of a right to compensation under Article 14(6) International Covenant on Civil and Political Rights 1966, which was ratified in the UK in 1976 and given effect initially by anex gratiascheme, then by s.133 Criminal Justice Act 1988. This grants the right to apply for compensation in certain limited circumstances where a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. 

However, neither the 1966 Convention nor the 1988 Act as originally enacted defined 'miscarriage of justice,' and it is not an issue with which the Court of Appeal is concerned when considering the safety of a criminal conviction. Of course, not all those whose convictions are quashed on appeal are necessarily victims of miscarriages of justice. The issue is where to draw the line. 

Until 2014, the definition of 'miscarriage of justice' was left to the courts, with divergent results.R (Adams) v Secretary of State for Justice[2012] 1 AC 48 attempted to clarify the law. It held that a miscarriage of justice would occur where the new or newly discovered fact so undermined the evidence against the defendant that no conviction could possibly be based on it. This was considered to strike the correct balance between ensuring that those entitled to compensation would receive it, and that those not entitled would not. 

A subsequent increase in judicial review claims, and the associated costs, was the rationale behind the amendment of the 1988 Act by the Anti-social Behaviour, Crime and Policing Act 2014. This added a statutory definition of 'miscarriage of justice,' requiring that the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence: s.133(1ZA) Criminal Justice Act 1988. 

The statutory definition does meet the stated aim of reducing uncertainty and recourse to judicial review, but then any statutory definition would achieve that. The problem is that the test may well be difficult to meet, for example where a conviction was based solely on a discredited witness, or an improperly obtained confession. Further, it may invite comment on the applicant's possible guilt, contrary to Article 6(2) European Convention on Human Rights 1950:Allen v United Kingdom(2016) 63 EHRR 10. In my essay, I therefore argue that the current test sets the bar too high, and that the approach of the Supreme Court inR (Adams)should instead be adopted. 

I am most grateful to the Bar Council Scholarship Trust for sponsoring this competition. The award will help to meet the expenses that I have incurred during training, and I have some books in mind. 

Samuel Linehan is a barrister practising in criminal law. The opinions expressed here are personal and in no way represent the position of his employer.