More than words
The Criminal Justice Act has been incorrectly worded and those eligible for compensation following wrongful imprisonment are being denied their rights, says Richard Emery
If you spent seven and a half months in prison for something you didn't do and were then released on appeal, you'd probably expect to be able to claim compensation for wrongful imprisonment '“ well think again!
Two men were convicted of being part of a £20m debit card fraud and sent down for two years. I was serving as the defence's expert witness and immediately after the case I discovered that the prosecution's expert witness had relied on a computer report which he knew to be inaccurate.
At the appeal Lord Justice Hooper stated that, because of this, 'this important piece of evidence was in fact valueless and should have played no part in the deliberations of the jury'. The Appeal Court endorsed the prosecution's decision to not resist the appeal; they quashed the convictions and agreed that it was right that the prosecution were not seeking a re-trial.
Freed after seven and a half months in prison the brothers asked their solicitor about compensation only to be told that they were not entitled to claim. I couldn't understand why this should be so I did some digging and this is what I found...
When the Criminal Justice Act 1988 was drafted it drew some of its wording from the International Covenant on Civil and Political Rights, but two very small changes in the wording have resulted in certain people being denied the rights that the Covenant sought to give them.
Article 14.6 of the Covenant states that:
'When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.'
Section 133 of the Act, which should reflect the Covenant, states that:
'(1).... 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 ...... unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(5) In this section 'reversed' shall be construed as referring to a conviction having been quashed '“ (a) on an appeal out of time.'
'A miscarriage of justice'
According to the Covenant, if it can be proved that at the time of the original trial the defendant knew 'the new or newly discovered fact' but did not disclose it then he is responsible for the miscarriage and cannot claim compensation.
The Act, on the other hand, omits the words 'in time' but adds a new condition under which compensation cannot be claimed. The Act specifies that compensation can only be claimed if the appeal is 'out of time'. This changes the criteria from whether or not the defendant knew 'the fact' before the trial, to when he lodged his appeal after the trial. By removing the words 'in time' and adding the words 'out of time', Parliament has completely changed the application of the Covenant.
This change is fundamentally wrong and is itself 'a miscarriage of justice'. Why should a person's right to claim compensation for wrongful imprisonment be dependent upon when they appeal? If someone was wrongfully imprisoned then they were wrongfully imprisoned. A successful appeal is a successful appeal.
I discovered the new fact immediately after the trial, with the result that the appeal was made 'in time'. But if I had not discovered it until some time later, then this would have resulted in the appeal being made 'out of time' and the defendants could now be considered for compensation for the months they spent in prison.
The Covenant is right and the Act is wrong.
The people with whom I have discussed this have all reacted in the same way:
1. Why are these two men not allowed to claim compensation when they have been imprisoned without doing anything wrong?
2. Why, when the prosecution did not resist the appeal, did it take seven and a half months for the appeal to be heard and the innocent men to be freed?
These questions need answering and the Criminal Justice Act needs amending.