Identifying and compensating wrongful conviction in Britain

[IvanV]

Curiously, the government has recently started to show some concern about how difficult it is to get your wrongful conviction overturned, and how mean we are about compensating those who wrongfully rotted in prison for a long time before getting the conviction overturned.

I say curiously because for the last 15 years their attitude has been, they are all faking. And their concern seems more like crocodile tears.

- In the case of compensation, it's not the fact that it's almost impossible to get compensation that bothers them, it's the measly compensation that those rare people who succeeded in getting it that bothers them. It is measly because they brought in a deduction for the cost of living savings you experienced because the government was paying for your keep while you were in prison. This case (BBC) is mentioned. Because, of course, it is so difficult to get compensation, that any of the mere handful of recent cases where compensation was achieved will inevitably be absolutely shocking, and this unsurprisingly fits the bill. But cases this extremely transparently dodgy are rare. But of course, that raises the other question, like how upon earth did such a transparently dodgy case take so long to get through the system and be reviewed to have its conviction overturned. Even then, this prisoner was lucky that they now have DNA evidence to convict someone else. Without that, they wouldn't have got compo, even if they had got the clearly very dodgy conviction overturned. Usually that won't happen.

- I'm pretty sure I saw a news report the other day saying the government was thinking about having a review of the present situation in relation to identifying miscarriages of justice, to report back in about 2026 or something, but I no longer seem to be able to find evidence of that news report. But this is curious because there was actually a commission like that which reported just a couple of years ago, and the government never did anything about its recommendations. It was probably inconvenient that, in addition to it explaining that it needed to be less strict in its rules over what got reviewed, there was an awful lot about how badly underfunded it was. So, more kicking into the long grass, if I'm right that there might be another review when they only just had one. But I'm probably misremembering exactly what I saw about this given that I can't find it again.

IIRC it was in about 2014 the government made it close to impossible to get compensation for imprisonment on wrongful conviction. They called this making the system fairer, on the usual Conservative schtick about the criminal justice system being far too soft on criminals, the implication being that plenty of people getting compensation were probably just cleverly lawyered to get off. And also brought in the deduction which is like paying for your imprisonment. The reality is that was already so difficult to get compensation that probably far more who deserved it failed to get it than did.

So now to get compensation, you have to show that (1) that you didn't do it, and (2) that your conviction arose from some wrongful actions by the police or justice system. Short of being able to prove someone else did it, it is very hard ever to prove (1). And even if you do, plenty of people are wrongfully convicted without any actionable or demonstrable wrong-doing by the authorities, it's usually just laziness and the desire to get someone in front of the court. You were convicted in a court of law, no one bore false witness against you, what are you complaining about?

I felt the old system was unfairly restrictive on who got compensation, before they made it worse. Even under the older system, you didn't get any compensation if you could show no actual wrong-doing by someone. So if you were wrongfully convicted for the usual sloppiness - the police failed to bother to find out if there were witnesses or forensic evidence that could confirm your alibi, preferring a sharp intake of breath in response to your claim you were somewhere else at the time - and the CPS decided that the dodgy identification evidence - it's often dodgy id evidence - together with a bit of unfortunate circumstantial was probably enough to get a jury to convict, you were stuffed. And then you'd be stuck there in prison, in the classic Catch 22 that prisoners who continue to deny what they were convicted for have much more difficulty getting parole.

[Gfamily]

It's also worth noting that prisoners don't get any NI contributions paid, so they will lose out when it comes to claiming the State Pension, unless they'r in a position to make up their contributions (£824.60 per year). I assume that wrongly convicted prisoners would have to make this up out of their compensation.

[IvanV]

It's also worth noting that prisoners don't get any NI contributions paid, so they will lose out when it comes to claiming the State Pension, unless they'r in a position to make up their contributions (£824.60 per year). I assume that wrongly convicted prisoners would have to make this up out of their compensation.

The vast majority of those who get their convictions overturned get no compensation under these present rules. And probably a much larger number never get their convictions overturned.

For example, even under the much more generous old rules, in perhaps the most famous miscarriage of justice of the time, Barry George got no compensation for being several years in prison after being wrongfully convicted of Jill Dando's murder. He succeeded in forcing Home Secretary Ken Clarke to consider his compensation claim a second time, and then went to court over the second refusal. But the judge said there "was indeed a case upon which a reasonable jury properly directed could have convicted the claimant of murder."

In other words, even under those old rules, if the police put the available facts in front of the jury, weren't deliberately withholding anything, and they convict you, you have no case for compensation. The fact of the police failing to properly investigate the factors, which on a proper examination, made it abundantly clear it was exceedingly unlikely that he did it, are not grounds for compensation. The problem, which led the police into sloppiness, and it is a common problem, is that instead of trying to work out what most likely happened, they focused on trying to maximise the evidence against George who was their only suspect. Later reviews by the police found it most likely it was a professional assassination. Fortunately for George, he got some large libel settlements out of various newspapers.

[snoozeofreason]

This case (BBC) is mentioned. Because, of course, it is so difficult to get compensation, that any of the mere handful of recent cases where compensation was achieved will inevitably be absolutely shocking, and this unsurprisingly fits the bill. But cases this extremely transparently dodgy are rare. But of course, that raises the other question, like how upon earth did such a transparently dodgy case take so long to get through the system and be reviewed to have its conviction overturned. Even then, this prisoner was lucky that they now have DNA evidence to convict someone else. Without that, they wouldn't have got compo, even if they had got the clearly very dodgy conviction overturned. Usually that won't happen.

It's still not obvious that Malkinson will get any compensation. The existence of DNA pointing to another perpetrator wasn't enough to get Victor Nealon any compensation, so such evidence could prove insufficient in Malkinson's case as well.

IIRC it was in about 2014 the government made it close to impossible to get compensation for imprisonment on wrongful conviction. They called this making the system fairer, on the usual Conservative schtick about the criminal justice system being far too soft on criminals, the implication being that plenty of people getting compensation were probably just cleverly lawyered to get off. And also brought in the deduction which is like paying for your imprisonment. The reality is that was already so difficult to get compensation that probably far more who deserved it failed to get it than did.

To be fair, all the three main parties have had a hand in this mess. In 2014 the Tory/Lib Dem coalition made it practically impossible to get compensation by introducing legislation in the Anti-Social Behaviour, Crime and Policing Act that meant that statutory compensation could only be awarded if an exonerated person could prove beyond reasonable doubt that they were innocent. But Labour had already made compensation difficult to get when, in 2006, they axed a previous ex gratia scheme, meaning that the statutory scheme was the only route by which compensation could be claimed.

There's a good summary of the whole business here, including some shocking statistics about the tiny number of successful claims.

https://www.thejusticegap.com/absolute-scandal-only-five-people-have-been-awarded-compensation-for-being-wrongly-convicted-since-2013

[Millennie Al]

Another similar, but lesser, injustice is the situation of someone acquitted after having being on remand. They get no compensation for being detained, though the detention would have counted as part of the sentence if convicted.

We really need a generic framework whereby there is guaranteed compensation for anyone detained in circumstances where they are not found guilty and their detention is not due to their own unreasonable behaviour (e.g. refusing to provide information not otherwise available that would prove them innocent, or arranging to be detained for the purpose of obtaining compensation).

[snoozeofreason]

Last month, the Grand Chamber of the ECtHR heard applications on the part of Victor Nealon and Sam Hallam who were both denied compensation despite being acquitted on appeal. As I already mentioned, Nealon was refused compensation despite DNA evidence pointing to another potential perpetrator, and Hallam was refused despite the fact that the intended victim of the attempted murder he was originally convicted for had given evidence that he (Hallam) was not present when the crime was convicted. The applications rest on the contention that the refusal of compensation breaches Article 6 § 2 of the ECHR (presumption of innocence).

There's a press release of the hearing (and a full webcast as well) here

https://www.echr.coe.int/w/grand-chamber-hearing-concerning-the-united-kingdom

Judgement is expected sometime next year.

[Opti]

I listened to the 'News Agents' podcast about the Andrew Malkinson miscarriage of justice last night.
I felt such empathy with the guy I got a bit of dust in my eye by the end.
I was left in no doubt that there are a lot more prisoners in the estate who are also victims of the same.
The compensation scheme is so obviously weighted against anyone who is cleared it's just performatively cruel by design.
The next UK government is going to be left with such a range of deliberately wrecked areas of society it should be able to be prosecuted as crimes against humanity.