The flaws in the ‘Innocence Test’

It may come as a surprise to learn that someone who is convicted and jailed for a crime they did not commit, and is then acquitted based on evidence which comes to light years later, which shows that they could not and should not have been convicted of the offence will most likely get no compensation whatsoever and have no legal remedy. Yet this is the case as a result of a raft of recent court decisions, followed by the introduction of new legislation. In this latest blog post we examine the flaws in the miscarriage of justice compensation scheme.

The test for who can get compensation for a miscarriage of justice under the Criminal Justice Act 1988 has always been a restrictive one. Firstly, an applicant has to have successfully appealed out of time, so not within the normal appeals process. Secondly, their acquittal has to be based on a new or newly discovered fact that was not known at the time of the original conviction. Finally, an applicant has to establish to the satisfaction of the Secretary of State for Justice, that they have suffered a “miscarriage of justice”.

Before March of this year, when section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 came into force, there was no statutory definition of what constituted a “miscarriage of justice”. From 2008, the test was applied more and more restrictively, with an increasing focus on whether or not an applicant could prove their innocence.

In 2011 the Supreme Court rejected the way in which the Secretary of State for Justice had been applying the test, holding in R (Adams) v Secretary of State for Justice that the Minister’s interpretation had been too narrow. The Court reformulated the test, imposing a hurdle high enough to ensure that people could not claim compensation based on any kind of technicality, but broader than just those applicants who could conclusively demonstrate their innocence. The Supreme Court stated that “miscarriage of justice” for this purpose should be extended to cases where a new or newly discovered fact “so undermines the evidence against the defendant that no conviction could possibly be based upon it”.

Many of those whose applications had previously been rejected by the Secretary of State, applying a flawed “pre-Adams” definition, reapplied and/or asked the Minister to reconsider his earlier decision. Seventeen of those applicants, their requests having been refused, sought to judicially review the Minister and five of those were selected as lead cases to be litigated (the others being effectively put on hold).

In October 2012 the High Court rejected the challenges brought by four out of the five, but further re-formulated the test in a way that was more readily applicable to the legal system in England and Wales, stating that a useful formulation of the question to be asked is: “has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”. Three of the Claimants were granted permission to appeal and in February 2013, the Court of Appeal gave judgement in in R (Ali, Dennis and Tunbridge) v Secretary of State for Justice; the appeals were not upheld.

Just a few weeks ago, the Supreme Court refused permission to Kevin Dennis to appeal further. Mr Dennis’ argument was that it is was only fair that the Secretary of State should consider his application applying the right test; and that if he did so and applied the correct definition properly to the facts, he would have to grant him compensation in the circumstances. Mr Dennis was the final one of the five applicants whose claims had been litigated through the courts; the Supreme Court decision effectively puts an end to the litigation.

Meanwhile, section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 came into force with the express intention of ensuring that claimants do not succeed in such legal proceedings. This states that for the purposes of compensation, there will have been a miscarriage of justice “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”.

The new definition applies to the determination of any application for compensation made on or after 13 March 2014 force, and to applications made before that date but which had not finally been determined by the Secretary of State by March 2014.

This new legislation in effect reverses the Adams decision and the fairer and more inclusive definition test that introduced and (despite elaborate attempts by Ministers during parliamentary debates to draw a distinction between showing you did not commit the offence and showing you are innocent of the offence!) requires a person to prove their innocence.

There are a number of considerable flaws in the so-called ‘Innocence Test’, concerns which have been voiced repeatedly by the legal profession and campaign groups.

The test means that victims of miscarriages of justice need to prove that they are innocent to the criminal standard of proof, beyond reasonable doubt. Apart from the rare case where DNA evidence proves someone else committed the crime, an alleged victim admits to fabricating his/her account of the offence or the real perpetrator confesses this is a virtual impossibility. Any findings of the Court of Appeal Criminal Division do not help as the Court of Appeal‘s function is to determine whether convictions are safe or not – they do not make findings of guilt or innocence.

Victor Nealon’s application for compensation, turned down after the Justice Minister applied the new statutory test, provides a compelling example of the gross unfairness of the current position, and the virtual impossibility of now obtaining compensation. Mr Nealon, aquitted after wrongly spending 17 years behind bars for an attempted rape, and significantly longer than he would have done if he had accepted he was guilty, has been told he is ineligible for compensation; even though DNA evidence points to the real possibility that another male committed the offence (a fact seemingly accepted by the Justice Minister), Mr Nealon cannot prove beyond reasonable doubt that he did not commit the offence.

The scheme has been reduced to nothing short of window-dressing. If you’re going to have a scheme then it must be there to pay-out. Yet, we now have a situation where the State can wrongly imprison someone, potentially for decades and then deny them any form of redress, even though there would not now be enough evidence to mount a case against them, let alone secure a criminal conviction.

The government’s rationale for this is, of course, the desire to save taxpayers money and to reduce the number of judicial reviews challenging compensation decisions. This will, they say, save an estimated £100 million annually. Yet this overlooks the fact that the new criterion is open to further and costly challenge, namely whether the innocence test is compatible with human rights legislation and the presumption of innocence in Article 6 (2) of the ECHR. Legal challenges have already been mounted by Victor Nealon and Sam Hallam, and many more are likely to follow.

There is also the fact that denying people compensation in fact increases the likelihood of them remaining on state benefits, potentially for life, at considerable cost to the tax payer.

Although not perfect, the 2011 decision in Adams was the most sensible test to date and should be used alongside a very clear steer for the Secretary of State as to how to apply it. A robust practical test needs to remove the onus from those not convicted by a court to then have to further prove their innocence.

I’ve seen first-hand how those that have been imprisoned without conviction have lost everything through no fault of their own – many lose their partners and become estranged from their children, personal relationships irretrievably break down, they lose years of their working lives and struggle to gain the skills and confidence to obtain employment, they struggle to find accommodation, their health suffers; to add insult to injury their time in prison is significantly worsened by the fact that they don’t get increased benefits and privileges during their sentence, and often miss out on early release, because they won’t admit their guilt.

And yet we refuse to compensate them because, it seems, the government does not want to be seen to be compensating individuals who have been tarnished by criminal charges, albeit unproven; unfortunately a ‘no smoke without fire’ argument carries weight.

If a court fails to find guilt, then the law says you are innocent and if you have served years in prison for a crime you did not commit, and can establish you could never have been convicted you should get compensation. Such people are victims too and should be fairly compensated for their loss of liberty.

This blog first appeared on The Justice Gap.