Compensation For Wrongful Imprisonment

Question: If my case is proved does the “Victim” have to return the funds they may have received from Criminal Injuries Compensation Authority?

Answer: NO

COMPENSATION FOR A MISCARRIAGE OF JUSTICE

The Home Secretary is prepared under certain specified circumstances to pay compensation to those who have been wrongly convicted or charged. These are set out in the then Home Secretary’s statement to the House of Commons on 29 November 1985 (1), the first part of which has now been reflected by the provisions of Section 133 of the Criminal Justice Act 1988 (2). The legislation complies with international obligations [Article 14(6) of the International Covenant on Civil and Political Rights].

People who are wrongly convicted should be compensated for all their losses on the same basis as other injury claims. Receiving a proper amount in compensation does not restore the missing years and cannot undo the original damage, but it will help. However, in 2006 the government capped compensation – even in cases where a defendant was demonstrably innocent – at £500,000 (£1m where imprisonment exceeds a decade).

The Justice Secretary will consider applications for compensation. Applications are made and decided under the statutory provisions of s133 of the Criminal Justice Act 1988 and section 61 of the Criminal Justice and Immigration Act 2008.

On Thursday 12th May 2011 a Supreme Court ruling that widens the definition of a miscarriage of justice has been hailed as a step in the right direction by campaigners.

The Supreme Court ruled, by the narrowest of margins, that some acquitted in court are entitled to compensation even if they cannot prove their innocence beyond reasonable doubt.

But judges warned the ruling would lead to some guilty people landing taxpayer-funded payouts. Currently, anyone who overturns their conviction must have been ‘shown conclusively to be innocent’ before compensation is considered.

Five of the nine Supreme Court justices, including the President of the Court, Lord Phillips, ruled this definition was too narrow. One of the judges, Baroness Hale, said: ‘Innocence as such is not a concept known to our criminal justice system. ‘We distinguish between the guilty and the not guilty. ‘A person is only guilty if the state can prove his guilt beyond reasonable doubt… if it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. ‘He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now.’

Compensation: In future, applicants will have to show that the evidence on which they were cleared was so compelling that no conviction could ‘possibly be based upon it’. In his ruling, Lord Phillips said: ‘This test will not guarantee that all those who are entitled to compensation are, in fact, innocent. ‘It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove innocence beyond reasonable doubt. “But in a dissenting judgement, the Lord Chief Justice, Lord Judge, argued it was right only the ‘truly innocent’ should be compensated. ‘In my judgement nothing less will do, and no alternative or halfway house or compromise solution consistent with this clear statutory provision is available,’ he said. Lord Brown, who also disagreed with the majority ruling, declared himself ‘troubled’ by the outcome. He added that the Justice Secretary, who rules on compensation, may be forced to write cheque’s for people he knows to be guilty on the basis of inadmissible intercept or intelligence material. The decision could mean compensation claims against the Ministry of Justice for a number of people wrongly convicted.

HOW TO APPLY FOR COMPENSATION

Applications should be made in writing to the Home Secretary and sent to:
Claims Assessment Team
Criminal Law and Policy Directorate
Home Office
Room 343
50 Queen Anne’s Gate
London
SW1H 9AT

Alternatively you may apply by e-mail to public.enquiries@homeoffice.gsi.gov.uk.

There is no standard application form.

Applications should include:

  • Applicant’s full name
  • Date of birth
  • Place and date of conviction or details of charge
  • The circumstances in which the conviction was reversed or the charge dropped
  • The reasons why the applicant feels compensation is due to him/her
  • Where charges were dropped it would be helpful to know which police force was involved

HOW APPLICATIONS ARE DECIDED

There is no general entitlement to recompense for wrongful conviction, for example compensation will not be awarded in cases where at the trial or on appeal the prosecution is unable to sustain the burden of proof against the accused person. The Home Secretary will nevertheless consider any application which is made to him, examining it in turn under the statutory provisions and the ex-gratia arrangements: if a Free Pardon is granted; in each case after the emergence of some new fact, and provided the non-disclosure of this fact was not wholly or partially attributable to the applicant.

“133. (1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when, subsequently, his conviction has been reversed or he has been pardoned on the ground that a new, or newly discovered, fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

(2) No payment of compensation under this section shall be made unless an application for such has compensation been made to the Secretary of State.

(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

(5) In this section “reversed” shall be construed as referring to a conviction having been quashed; (a) on an appeal out of time; or
(b) on a reference
(i) under section 17 of the [1968 c. 19.] Criminal Appeal Act 1968; (ii) under section 263 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975; or (iii) under section 14 of the [1980 c. 47.] Criminal Appeal (Northern Ireland) Act 1980.

(6) For the purposes of this section a person suffers punishment as a result of a conviction when sentence is passed on him for the offence of which he was convicted.

(7) Schedule 12 shall have effect.”

Statutory provisions briefly: compensation is payable under section 133 of the Criminal Justice Act 1988: if a conviction is quashed on an out-of-time appeal; or if a conviction is quashed after the case has been referred to the Court of Appeal by: (i) the Home Secretary under section 17 of the Criminal Appeal Act 1968 before 31 March 1997 or (ii) the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on or after 31 March 1997; or if a conviction is quashed on appeal under Section 7 of the Terrorism Act 2000; or…

Applications should be made in writing to the Home Secretary and sent to:
Claims Assessment Team
Criminal Law and Policy Directorate
Home Office
Room 343
50 Queen Anne’s Gate
London
SW1H 9AT

Alternatively you may apply by e-mail to public.enquiries@homeoffice.gsi.gov.uk.

There is no standard application form.

Applications should include:

  • Applicant’s full name
  • Date of birth
  • Place and date of conviction or details of charge
  • The circumstances in which the conviction was reversed or the charge dropped
  • The reasons why the applicant feels compensation is due to him/her
  • Where charges were dropped it would be helpful to know which police force was involved

EX-GRATIA SCHEME

Alternatively, the Home Secretary may make an ex-gratia payment in certain exceptional cases where the applicant has spent time in custody, for example where there is serious default by a public authority, such as the police, or if an accused person is completely exonerated (whether at trial or on appeal).

AWARDS OF COMPENSATION

The Home Secretary takes the final decision as to whether the applicant qualifies for payment. An independent assessor determines the amount of the award in all cases. It is not the Home Secretary’s normal practice to publish details of individual awards.

Home Secretary’s statement to the House of Commons on 29 November 1985

[TEXT OF PART OF WRITTEN ANSWER TO HOUSE OF COMMONS ON 29 NOVEMBER 1985 ABOUT COMPENSATION FOR WRONGFUL CONVICTION [REFERENCE HANSARD COLUMNS 691-692]

Mr. Hurd: “There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose convictions are quashed on appeal, or to those granted free pardons by the exercise of the royal prerogative of mercy. Persons who have grounds for an action for unlawful arrest or malicious prosecution have a remedy in the civil courts against the person or authority responsible. For many years, however, it has been the practice for the Home Secretary, in exceptional circumstances, to authorise on application ex gratia payments from public funds to persons who have been detained in custody as a result of a wrongful conviction.”

[The next passage of the Home Secretary’s answer referred to his preparedness to pay compensation as required by the Government’s international obligations. The wording of the quoted article 14.6 of the international covenant on civil and political rights was to be very closely followed in subsequent legislation – that is section 133 of the Criminal Justice Act 1988]

“I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.” “There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts may emerge at trial or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or an appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.”

“It has been the practice since 1957 for the amount of compensation to be fixed on the advice and recommendation of an independent assessor who, in considering claims, applies principles analogous to those on which claims for damages arising from civil wrongs are settled. The procedure followed was described by the then Home Secretary in a written reply to a question in the House of Commons on 29 July 1976 at columns 328-330. Although successive Home Secretaries have always accepted the assessor’s advice, they have not been bound to do so. In future, however, I shall regard any recommendation as to amount made by the assessor in accordance with those principles as binding upon me. I have appointed Mr. Michael Ogden QC* as the assessor for England and Wales. He will also assess any case that arises in Northern Ireland, where my right hon. Friend the Secretary of State for Northern Ireland intends to follow similar practice.”

LORD LAMONT OF LERWICK ASKED HER MAJESTY'S GOVERNMENT

In how many cases in the past five years of people wrongly imprisoned and released from prison there are payments of compensation due which have not yet been paid; what the sums of money claimed or agreed are; and for how long the payments have been outstanding. [HL1823]

Lord Falconer of Thoroton: Ninety-one claims for compensation for wrongful conviction or charge authorised for payment by the Secretary of State for the Home Department since 1 March 1998 have yet to be finalised. Seventy-eight of these are waiting for information to be supplied by the claimants or their representatives. Of the 91 claims outstanding, 32 are less than a year old, 23 are one to two years old, 28 are two to three years old, seven are three to four years old and one is more than four years old.

It is not possible to provide any estimate of the total sums of money involved in these outstanding claims as this information is not available until the claimants or their representatives have submitted full details of their final claims. Once the assessor has calculated the quantum of an award and the claimant agrees to accept this, payment is normally made within two weeks.

On how many occasions in the past five years compensation has been paid to people who have been wrongfully imprisoned; and what is the total value of the compensation that has been paid.[HL1824]

Lord Falconer of Thoroton: Payment of compensation for those wrongfully convicted or charged is as follows:

Year Amount (£millions)
1997–1998 6.652
1998–1999 5.302
1999–2000 5.647
2000–2001 8.051
2001–2002 6.172

These figures include payment for interim and final awards. (The latter includes the claimants’ legal fees).

Reliable statistics on the breakdown of payments are available only for the past two years. Since 1 March 2001, the Secretary of State for the Home Department has authorised the payment of compensation for wrongful conviction or charge to 76 applicants. In 24 of these cases the claims have been settled in full in the sum of £1.5 million (including legal fees). In a further 30 cases interim payments have been made to the claimants in the sum of £2 million. These, together with the remaining 22 cases, await the submission of their final claims.

CRIMINAL JUSTICE REVIEW 1999-2000

Fixing the Price for Spoiled Lives: Compensation for Wrongful Conviction. © Nick Taylor, 2002

The recent spate of well publicised wrongful convictions, such as the Birmingham Six and the Guildford Four, has drawn considerable attention to the ability of the criminal justice system to more quickly recognise and rectify its mistakes. However, for the individuals involved the overturning of a wrongful conviction is often the beginning of a long and arduous struggle to piece their lives back together again. On the one hand, it is recognised that the state’s responsibility in relation to wrongful convictions should not, and does not, end with the quashing of such a conviction. But on the other hand such recompense does not arrive quickly and neither can it compensate for the horrors that have been endured by defendants and their families. This article will look at the systems which exist to provide compensation for wrongful conviction.

Currently there are two compensation schemes in operation. The first involves compensation payments, wholly within the discretion of the Home Secretary. In certain instances an ex gratia payment will be offered if the case involves negligence on the part of the police or some other public authority. Examples of such awards include £2000 paid to Luke Dougherty in 1973 for eight months spent in prison following a wrongful theft conviction, and Albert Taylor, released in 1979 after serving five years of a life sentence for murder received £21,000 following the quashing of his conviction.

This discretionary scheme alone, however, failed to meet the UK’s international obligations under article 14(6) of the UN International Covenant on Civil and Political Rights in that it has no basis in law. A second scheme was therefore established by the Criminal Justice Act 1988. (The ex gratia scheme continues to operate in those cases which may fall outside the Act.) A positive application for compensation must be made to the Home Office who then consider the question of whether or not there is a right to compensation in a particular case. The Home Office insist that a guiding factor behind state compensation is that it is not a payment in recognition of a miscarriage of justice per se, but is designed to recognise “the hardship caused by the conviction.” The Home Office interpretation of their role under the Act is, however, regrettably narrow, failing to recognise that the hardship caused extends beyond the applicant, and further failing to recognise the limitations of financial compensation alone.

PROCEDURE UNDER THE CRIMINAL JUSTICE ACT 1988

Compensation payments under the statutory scheme are calculated in a way that is the same as the calculation of damages for civil wrongs. Personal financial losses include a calculation of the loss of earnings and the reduction in the applicant’s future earning capacity. Complex calculations involving such things as loss of pension rights may also mean that securing the services of a forensic accountant could prove invaluable. Other losses that may be compensated include the cost of the applicant’s legal assistance and the potentially considerable travel expenses incurred by the family when visiting the applicant over a period of years.

Other non-financial losses may also be claimed although by their very nature they are extremely difficult to quantify, especially those caused by emotional distress. In many miscarriages of justice the victim may very well have been subjected to severe character assassination by prosecuting authorities seeking to justify their actions. A sum to compensate such injuries would obviously be very difficult to ascertain and would be unlikely to reflect the almost irreparable damage caused to a person’s reputation by the criminal label. “It was with some irony that on the same day as details of John Preece’s ex gratia award were leaked in the press [£77,000 for eight years in prison for a wrongful murder conviction] the newspapers reported that Billy Bremner, the former Leeds United and Scotland footballer, had been awarded libel damages of £100,000 by a jury over allegations…that he (sic) offered bribes to influence the results of football matches”. (Ingman, 1996: 173)

Statutory compensation payments do not, however, appear to entitle the family of an applicant to claim for their own losses beyond their travel expenses. In many respects the hardship caused to the parents, spouses and children of the applicant can be as grievous as that suffered by the applicant. To ignore their distress fails to satisfy the Home Office’s own rationale for compensation.

There have been few full and final settlements to date. Gerard Conlon, one of the Guildford Four, is reported to have settled for a final payment in the region of £400,000. Members of the Birmingham Six, however, were said to be insulted at similar offers following their sixteen years in prison. Such offers do not appear to compare favourably with the available guidance as to the appropriate level of compensation taken from awards of damages made in cases of false imprisonment.

In Hsu v Commissioner of Police for the Metropolis, (New Law Journal, 1997: 341) Lord Woolf spoke of guidance to be given to a jury to assist them in assessing the damages to be awarded in cases involving unlawful conduct by the police towards the public. He stated that, “In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum is to be on a reducing scale…” Aggravating features could increase the award. Though the Home Office does not accept any liability when making compensation payments a parallel can still be drawn with such cases when seeking an appropriate sum for compensation.

CONCLUSION

Rather than seeking to achieve the minimum international standards the Home Office ought to attempt to satisfy their own rationale of seeking to compensate for the hardship caused by the wrongful conviction. The current position virtually demands proof of innocence before a claim is successful. This is clearly unfair. Though no-one would wish to see payments made to those who have been cleared purely on legal technicalities, the balance should be in favour of compensating rather than not. The wrongfully convicted continue to carry the burden and stigma of conviction which is no doubt exacerbated but the lack of any form of rehabilitation program. This treatment contrasts with that of prisoners who have rightly served long sentences. They have, for example re-training schemes to help them find employment, somewhere to live and generally re-adjust into society. Without such help the original wrongful conviction can continue to wreck lives no matter how much monetary compensation is provided. Paddy Hill said, following the release of the Bridgewater Three, “There is not a week goes by when I don’t wish I was back in prison” (The Times, 1997: 6). Less than two years after being released from a wrongful murder conviction lasting sixteen years Stefan Kiszko died. A family friend commented, “Stefan … never recovered from what happened … he could not face the world.” (Sanders and Young, 1994: 185) If our criminal justice system is going to be fair, and be seen to be fair, then we will have to openly accept that it can sometimes be wrong and that when it is wrong it should be prepared to repair these spoiled lives as swiftly as possible.

REFERENCES

Ingman, T. (1996) The English Legal Process, 6th ed. London: Blackstone Press. Sanders, A. and Young, R. (1994) Criminal Justice, London: Butterworths. Our Shoddy Treatment of Victims of Injustice
Proposals to dock money from the compensation paid to those wrongfully imprisoned, to account for saved living expenses while inside, simply adds insult to injustice Michael Naughton Sunday March 16 2003

THE OBSERVER

Last week’s high court review of the levels of compensation received by victims of miscarriages of justice shed some rare light into one of the more shameful aspects of our criminal justice system.

Cousins Michael and Vincent Hickey of the Bridgewater Four spent 17 years wrongfully imprisoned and Michael O’ Brien of the Cardiff Newsagent Three for his 11 years of wrongful incarceration. Yet the sticking point in court last week centred on the proposed reductions in compensation suggested by the home office appointed assessor to account for their “saved living expenses” whilst the three were wrongfully imprisoned. In effect, this charges them for prison board and lodgings. If he has his way, Lord Brennan QC would reduce Michael and Vincent Hickey’s awards by about £60,000 to leave them with £930,000 and £446,000 respectively. Michael O’Brien’s award would be reduced by £37,000 to leave him with £613,000.

These proposals will strike most people as a gratuitously ungenerous response by the state to those who have been locked up unjustly. Yet there are also broader problems of the way this issue is debated. Compensation awards to victims of miscarriages of justice are generally considered only in the context of specific high profile cases. The last time that there was much media discussion of the issue, for example, followed reports that £1 million was said to have been offered to Paddy Hill of the Birmingham Six for his 17 years of wrongful imprisonment.

This tends to give the impression that miscarriage of justice compensation is uncommon and that the payment of compensation to victims of ‘justice in error’ applies only to a handful of notorious, high profile victims. Indeed, Paddy Hill’s offer came 11 years after his conviction was quashed by the Court of Appeal (Criminal Division) (CACD) in 1991, and over a quarter of a century after his wrongful conviction. The much-discussed cases of the Bridgewater Four and the Cardiff Newsagent Three are also somewhat dated.

Yet compensation to victims of wrongful criminal convictions, or wrongful criminal charges, is far from a rare occurrence but rather a routine feature of the criminal justice system if the wrongful conviction is derived from ‘judicial error’. Over the last decade, for example, there have been over 150 successful applications for compensation that fulfilled the required criteria under the statutory or ex-gratia schemes.

This led the Home Office to pay out a record £8.05 million in compensation in 2000-01, compared with £1.54 million in 1994-95. And, over the five year period, the total cost to the public purse for compensation to miscarriage of justice victims who qualified was almost £40 million, or around £8 million per year.

As we also saw last week, the current debate about miscarriage of justice compensation also places victims of wrongful imprisonment have been put on the back foot in attempts to defend the assessed awards against what are seen as inappropriate reductions by the official assessor. As a result, no one has thought to question the general level of the awards compared against the relative value of past awards.

Yet the case of Adolf Beck, the first recipient of compensation for wrongful imprisonment at the turn of the twentieth century, sheds further light on just how ungenerous our contemporary treatment of the wrongly convicted is. Beck was twice wrongly convicted for larceny and served 5 years of penal servitude. In response to the public crisis of confidence in the criminal justice system that accompanied the public knowledge of the Beck Affair the court of appeal was established in 1907. For his personal loss of liberty, the government of the day awarded Beck £5000 in compensation. This equates to a sum of almost £310,000 in terms of its current purchasing power, or around £62,000 in today’s money for each year of wrongful imprisonment.

Yet, even before any proposed reductions, Michael O’Brien’s award before any proposed deductions is already around £30,000 short of that awarded to Beck; Michael Hickey’s award before reductions is approximately £150,000 less than he might have expected if we apply the Beck formula and Vincent Hickey’s award is over half a million pounds too little. This evidence of the diminishing value of compensation paid to victims of miscarriages of justice is emphasised surely strengthens the challenge against the proposed reductions to the compensation awarded to Michael and Vincent Hickey and Michael O’ Brien. And, at the same time, any notion of supposed progress in the treatment of victims of injustice, and the provision of adequate compensation for the harm that they have suffered, is profoundly undermined.

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