By Rebekah Read
This week I saw the brilliantly entertaining satirical musical ‘The Scottsboro Boys’ at the Young Vic. (http://www.youngvic.org/whats-on/the-scottsboro-boys). A moving tale of a deplorable miscarriage of justice which brought about the end of all-white juries in Alabama, the Scottsboro boys were nine black teenagers who were falsely convicted of raping two white girls in 1931. After many years of imprisonment and numerous retrials following campaigning from the American Communist Party, the boys were gradually released, apart from one of the boys who died in prison in 1952.
This play serves as a reminder of the fallibility of the court process. Although we would like to place such atrocious injustices behind us, most readers will be familiar with some of the more notorious miscarriages of justice over the last 50 years. The Birmingham six, for example, vilified in a dreadful media campaign, were sentenced to life imprisonment for the Birmingham pub bombings in 1975. They were released when their convictions were found to be unsafe after 16 years of imprisonment. Rightly, they were awarded compensation for the years of unfair incarceration and their release led to the setting up of the Criminal Cases Review Commission, which has led to the quashing of hundreds of unsafe convictions. The Government are now trying to restrict compensation to those who can prove their innocence.
Prior to 2006 there existed a discretionary compensation scheme as well as a statutory scheme to compensate victims of miscarriages of justice. The discretionary scheme allowed for an ex gratia payment to be made to those who had suffered a miscarriage of justice. However, despite strong campaigning by, amongst others, lawyers who had represented victims of such injustices, New Labour abolished this in April 2006, leaving just the statutory compensation scheme which still remains.
Under the statutory scheme, s33 of the Criminal Justice Act 1988 (“CJA”) does not define ‘miscarriage of justice’. The test has therefore developed in case law and has been established in Adams as the following:
“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.”
If passed, the Anti-social Behaviour, Crime and Policing Bill, along with a number of other worrying measures, seeks to define the term ‘miscarriage of justice’ in a way which removes the presumption of innocence from those who have been wrongly convicted. Section 151 as currently drafted defines a ‘miscarriage of justice’ as “a case where the new of newly discovered fact shows beyond reasonable doubt that the applicant was innocent”. The Bill has passed through the Commons and will be debated at committee stage in the Lords on Tuesday.
The Home Office argue that a statutory definition is needed to save cost and to ‘provide clarity’. However, the cost-saving is anticipated to be in the reduction by two per year of judicial reviews of the Secretary of State’s decisions, which is estimated to save just £100,000 per year.
The Impact Assessment provided by the Home Office bases its claim about the lack of clarity on what it calls the “expanded” definition of a “miscarriage of justice” created in the case of Ali, which followed Adams. However the Court in Ali was careful to state that their definition was simply a rewording and “carries an identical meaning”. Subsequently, the Court of Appeal has rejected the case of Allen which sought to extend the test. This decision has been upheld by the European Court of Human Rights. The test is therefore clear.
Compliance with International Law
Section 133 of the CJA as currently drafted gives effect, almost verbatim, to section 14(6) of the International Covenant on Civil and Political Rights 1966 (“ICCPR”). Damian Green has interpreted the ICCPR as supporting the proposed amendment. This is grossly misleading. Nothing in the Covenant itself, or in the travaux préparatoires, demonstrates a consensus among the State Parties that compensation should be paid only to the demonstrably innocent. As Lord Bingham noted when considering the issue in the case of Mullen:
“…every proposal to that effect was voted down. The travaux disclose no consensus of opinion on the meaning to be given to this expression. It may be that the expression commended itself because of the latitude in interpretation which it offered.”
In light of Lord Bingham’s comments, an amendment to limit compensation to the factually innocent would arguably breach the UK’s international obligations to give effect to the ICCPR.
Compliance with the European Convention on Human Rights (“ECHR”)
The question of when a refusal to pay compensation in these cases breaches the ECHR was recently brought before Strasbourg in the case of Allen. In this case the applicant alleged under Article 6(2) of the ECHR that the decision, following her acquittal, to refuse her compensation for a miscarriage of justice violated her right to be presumed innocent. Article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
When considering whether the applicant’s right to be presumed innocent was respected in this case, the European Court of Human Rights held that Article 6(2) was not breached because:
“what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.
Since Lord Steyn’s test of demonstrating innocence is exactly what is being proposed in this amendment, this judgment strongly implies that the amendment will be held to be in violation of article 6(2) rights.
The Court held that Allen’s right to a presumption of innocence was not breached, putting particular emphasis on the fact that in their judgment, the Court of Appeal did not employ language which is incompatible with the presumption of innocence. It is difficult to see, with the proposed definition of “miscarriage of justice”, how a Court would be able to formulate a judgment on a claimant’s entitlement to compensation without calling into question their innocence and thereby breaching their article 6(2) rights.
In response to the implications of Allen, the Government has argued that the effect of the provision in the Bill is not that the applicant has to “demonstrate [their] innocence”, but that the Secretary of State has to be satisfied that the new fact on which the conviction was quashed shows clearly that the applicant did not commit the offence for which he or she had been convicted. This distinction is artificial and the Joint Committee on Human Rights have held that it is “clear beyond doubt” that the proposed test is incompatible with article 6(2) ECHR.
Effect of the proposals
At present in England and Wales some 40 to 50 applications under section 133 are received each year; of these only 2 or 3 are found to be eligible for compensation, and the Government is only anticipating savings of £100,000 from this amendment. These proposals will be putting an extremely onerous evidential burden on the individual. They will need to prove a negative: that they did notcommit the requisite acts with the requisite state of mind that would make them guilty of the offence. In addition, the individual may be claiming compensation in relation to a prosecution that took place decades ago, and obtaining evidence sufficient to prove innocence beyond reasonable doubt where the events took place in the relatively distant past imposes a significant practical burden. Lord Hope, who heard the case in Adams and held the majority opinion, made the point in the Lords last week, “It is not difficult to envisage situations where sheer proof of innocence…will be simply unattainable”.
Perversely, the notorious miscarriage of justice cases which led to the establishment of the Criminal Cases Review Commission – the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward – would not satisfy the proposed innocence test. Should the amendment be passed it will restrict compensation for many people who have spent significant periods in prison and have endured hardship, stigma and deprivation as the result of wrongful conviction.
The same ideology which is driving the Government’s discriminatory immigration policy and legal aid cuts – which have directly resulted in the closure of the Chambers of Michael Mansfield QC, who represented the Birmingham six and Guilford four – is now driving the removal of the presumption of innocence for those who have been wrongly convicted. Cumulatively, these measures represent a hideous attack on the rule of law and should not be accepted. We look to the Lords to see sense and amend the Bill to preserve the fundamental principle of the presumption of innocence.
 R (Adams) v Secretary of State for Justice  UKSC 18, para 55.
 Page 4, Ministry of Justice Impact Assessment (see above)
 Allen v The United Kingdom (application number 254/09)
 Para 9(2), R (Mullen) v Secretary of State for the Home Department  1 AC 1
 Allen v The United Kingdom (application number 254/09), para 133.