September 26 2023

‘A Prolonged Kidnapping’: Miscarriage of Justice Compensation

‘A Prolonged Kidnapping’: Miscarriage of Justice Compensation

Image from 'More Rough Justice' by Peter Hill, Martin Young and Tom Sargant, 1985

On 6 August 2023 the Secretary of State for Justice, Alex Chalk KC, announced that victims of miscarriages of justice would no longer have ‘saved living costs’ deducted from compensation payments made under the statutory Miscarriage of Justice Compensation Scheme governed by the Criminal Justice Act 1988.

The decision followed justified public outcry at the suggestion that Andrew Malkinson, whose 2004 conviction for rape was overturned on 26 July 2023 after he had served 17 years in prison for a crime he did not commit, may have part of any compensation awarded (for loss of earnings) reduced to reflect that he had ‘saved living expenses’ whilst in prison.

The change in guidance is welcome. The practice of, in effect, charging the wrongly convicted for their room and board in prison was grossly unfair. Whilst it has been suggested that the deductions stemmed from a 2007 court case, the practice was actually introduced by Lord Brennan QC after he was appointed by the Secretary of State in 2001 to assess damages for miscarriage of justice victims.

A majority in The House of Lords approved the practice in 2007 after three miscarriage of justice victims (Michael O’Brien, Vincent Hickey and Michael Hickey) brought judicial reviews challenging 25% deductions from their damages for loss of earnings in respect of “saved living expenses”. However, giving the dissenting opinion in the House of Lords, Lord Rodger likened the deduction to charging people in cases of “prolonged kidnapping”, concluding:

…justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated”. (Lord Rodger of Earlsferry in O’Brien v Independent Assessor [2007] UKHL 10, at 82.)

Announcing the change in guidance, the Secretary of State said it was “not right” for victims of miscarriages of justice to “face paying twice for crimes they did not commit” and claimed to be injecting “greater fairness” into the system. (‘Wrongly-convicted no longer face being ‘charged’ for saved living expenses’, Ministry of Justice, 6 August 2023 (here)).

Yet, despite this change, the statutory scheme for compensating victims of miscarriage of justice remains seriously flawed.

The eligibility criteria are unduly strict
In 2014 the coalition government overturned a 2011 Supreme Court decision in the case of Andrew Adams (R (Adams) v Secretary of State for Justice [2011] UKSC 18) to make it harder to access the statutory compensation scheme, with applicants required to prove beyond a reasonable doubt that their conviction was overturned on the basis of a “new or newly discovered fact” which shows that they “did not commit the offence”. This is an extremely high bar, which many victims of miscarriage of justice have and will fail to reach: exoneration in the Court of Appeal on the basis that the conviction is unsafe does not mean that compensation will be paid.   In effect, the compensation scheme requires individuals to provide evidence of their innocence, often many years after their wrongful conviction. In many cases that evidence will no longer exist.

According to the BBC’s Radio 4 programme Today in August 8, in the past five years the Justice Secretary has accepted only 13 out of 350 applications for statutory compensation under the scheme.

Compensation is capped
Since 2008, the amount of compensation an applicant can be awarded under the scheme is capped at £1million where the person has been imprisoned for more than 10 years, and £500,000 where they have been imprisoned for less than 10 years. What’s more, ‘Exemplary Damages’ punishing those responsible, which may be available from the courts, are excluded from the compensation scheme.

Though the Secretary of State talks about “fairness…[being] a core pillar of our justice system”, that fairness will apparently only extend so far (here). Although the scheme nominally follows principles of English law, compensating victims for the physical and financial impacts of their wrongful conviction, with their compensation capped and exemplary damages excluded, a miscarriage victim may not be compensated for all of their losses flowing from the wrongful imprisonment. This is particularly true for those who, like Andrew Malkinson, have served the longest sentences and have had to fight the longest and the hardest to prove their innocence.

An applicant is required to exhaust all other remedies before their miscarriage of justice application is progressed
When announcing the end to the ‘saved living expenses’ deduction, the Secretary of State emphasised that applicants could also seek redress in the courts, by bringing a civil claim against those responsible. The statutory scheme does not hold to account those responsible for the wrongs underlying a miscarriage of justice; separate legal avenues are sometimes available to do that – including parallel civil claims against the police or seeking the prosecution of those responsible for what happened.

The most recent (August 2022) guidance for successful applicants states that the statutory scheme “will not progress…[an]… application until it is satisfied that an applicant has taken all reasonable steps to obtain damages or compensation etc from another source and until such time as any outstanding applications or claims have been determined in full.”.

The implications of this provision in such a complex case as Andrew Malkinson’s are stark. Amongst other things, he will need to consider bringing a malicious prosecution claim against Greater Manchester Police (GMP). Malicious prosecution claims are always legally and factually complex and require proof that the prosecution was brought both without reasonable and probable cause and maliciously. Such claims require careful investigation and analysis, and often include legal fights about disclosure.

Investigating these claims takes time. To force Andrew Malkinson to choose, and to declare (as the application requires) whether or not he is pursuing a civil claim at the outset already prejudices him. Worse, the suggestion that he should be required to pursue any potential parallel claim to the end (which could take years) and which may or may not be successful, before he can even get an interim payment under the miscarriage of justice scheme is cruel and unjust.

The previous well-established position was simply to preclude the double recovery of each head of loss, which is transparent and workable. The new guidance is wholly unnecessary and the MOJ must re-think.

Access to justice
Lastly, in the event an applicant is able to force their way onto the scheme, they may well find that they lose access to the vital legal aid funding they will need to pay a legal team to hold to account all those responsible for their wrongful convictions, which includes compensation claims but also other potential legal remedies that they deserve and serve a public interest in deterring and preventing similar miscarriages of justice.

Typically, the only way that an applicant can access the legal representation they’ll need to pursue such remedies is with the support of legal aid. And yet, unlike other statutory schemes for compensation, for example payments relating to the Grenfell Tower fire, the Windrush Compensation Scheme, the Infected Blood Support Scheme or Criminal Injuries Compensation, there is no discretion to exempt payments under the Miscarriage of Justice compensation scheme when calculating financial eligibility for legal aid.

So, if you manage to convince the Secretary of State to accept you onto the miscarriage of justice scheme, your compensation will be subject to an artificial cap and you could lose funding to pursue other legal remedies against the police or other state agents – or be forced to use your compensation to pay for lawyers.

No doubt this is yet another ‘saved expense’ for the Ministry of Justice, which also foots the Legal Aid bill, but to borrow a phrase, “justice, reasonableness and public policy surely dictate” that the government should correct this, and the other flaws in the scheme, so that victims of serious miscarriages of justice can properly vindicate all their legal rights in the months and years ahead of transition back into society.