If it has four legs, it moos and eats grass – IT’S A COW! If only a miscarriage of justice could be identified as easily.

The European Court of Human Right’s Grand Chamber heard Lorraine Allen’s case on November 14th 2012. Hugh Southey QC stood on a David and Goliath basis against the agents of the UK. The coverage on the website of a lonesome Hugh against the posse still makes me lament the good fight.

Lorraine Allen was the victim of a serious miscarriage of justice in one of the high-profile ‘shaken-baby’ cases of 2005. She had been convicted of the manslaughter of her four-month old son Patrick in 2000, after prosecution experts claimed the only explanation for his collapse was violent shaking or shaking plus impact. The basis of this conclusion was ‘the triad’ of injuries seen as a definitive indicator of non-accidental head injury. Or was it?

Lorraine had been sentenced to three years’ imprisonment and a child born while she was serving that sentence was taken away from her and placed for adoption – this tragic case concerns the loss of two children.

The conviction was quashed in 2005, after fresh medical expert evidence proved it to be unsafe and as a victim of miscarriage of justice. Lorraine applied for compensation.

This was refused by the Home Secretary because her claim, it was argued, did not meet the statutory criteria under Criminal Justice Act 1988, s133.

Lorraine challenged the decision by judicial review, but this was refused by the High Court in 2007 and the subsequent appeal was dismissed in 2008. Off to Europe we went and the case was referred direct to the Grand Chamber last June The oral hearing of the case took place in November 2012.

The European Court of Human Rights concluded the long campaign for justice on 12 July 2013 with a judgement which ruled against Lorraine’s claim that her rights under Article 6(2) of the ECHR had been breached. The argument at its simplest had been: ‘You are innocent; you are found guilty; your conviction is then quashed; and so you return to innocence.’

The problem is that the very narrow constraints of section 133 do not take account of such a simple premise. It provides:

‘(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 … unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.’

The ECHR did not get embroiled with the definition of a miscarriage of justice or the actual formulation of Section 133.

‘The Court further observes that the possibility for compensation following acquittal in the respondent State is significantly limited by the section 133 criteria. It is clear that an acquittal in the course of an appeal within time would not give rise to any right to compensation under section 133. Similarly, an acquittal on appeal based on inadequate jury directions or the admission of unfair evidence would not satisfy the criteria set out in section 133 of the 1988 Act. It was for the domestic courts to interpret the legislation in order to give effect to the will of the legislature and in doing so they were entitled to conclude that more than an acquittal was required in order for a “miscarriage of justice” to be established, provided always that they did not call into question the applicant’s innocence. The Court is not therefore concerned with the differing interpretations given to that term by the judges in the House of Lords in Mullen and, after the judgment of the Court of Appeal in the present case, by the judges in the Supreme Court in Adams (HERE). What the Court has to assess is whether, having regard to the nature of the task that the domestic courts were required to carry out, and in the context of the judgment quashing the applicant’s conviction (see paragraph 127 above), the language they employed was compatible with the presumption of innocence guaranteed by Article 6 (2).’

It was accepted that the compensation procedure engaged the presumption of innocence; however, it held that it was important to look at the precise words used by the courts that considered the application. This would be of critical importance. In Lorraine’s case they found there was there was no evidence that the courts in the UK had applied the statutory test in a way which questioned the innocence or guilt of Lorraine. It stated that ‘the language used by the UK courts in their decisions to decide on compensation had not undermined Ms Allen’s acquittal or treated her in a manner inconsistent with her innocence’.

Not innocent enough?
The future is uncertain, certainly the domestic courts and government are likely to be advised to decide that applicants are merely not innocent enough rather than cast doubt on acquittals, however the ECHR made some concerning differentiations between acquittals on a technical basis and those of a full fat/ no doubt variety.

In practice, this means that only clear cut acquittals in the first or second category of Adams are likely to ever gain compensation. This would appear to exclude cases in which experts do not agree.

The incredibly narrow basis for compensation under section 133 is a shameful indictment on our Criminal Justice System in my opinion.

There have been calls to re-introduce an ex gratia scheme – and I add my voice to them. There is a definite need for a discretionary and moral approach to compensation. It is abhorrent that the right to compensation following a miscarriage of justice relies entirely on the strength of evidence. In complex cases concerning differing expert views, it is a near certainty that the high threshold required to obtain compensation under section 133 will never be met.

We are in uncertain times when future miscarriages of justice may become more prevalent with proposed funding cuts to criminal legal aid. It is crucial that a safety net exists to compensate those who lose their livelihoods and more.

The ex gratia scheme was withdrawn a number of years ago on the basis that it did not reflect the previous governments’ tough on crime stance and victim-focussed approach – but what about the victims of the justice system such as Lorraine?

The comments of UK Justice Minister Damian Green may reflect this: ‘I am pleased that the European Court of Human Rights has agreed with the judgment of our domestic courts and agrees that compensation is not applicable in this particular case.’

Thanks for the sympathy Mr Green. Tea anyone?

This article and the views expressed are those of the author personally and do not constitute any views of the partnership.