Barry George, wrongly convicted of the murder of BBC TV presenter Jill Dando, has lost a bid for compensation, ruled the High Court today. Three other people whose convictions had been quashed also failed to win compensation but Ian Lawless, jailed for eight years for murder before being freed by the Court of Appeal in 2009, was successful.

• This article is written by Mark Newby, solicitor advocate with QualitySolicitors Jordans and advisor to the Innocent Network UK, and Matthew Stanbury, a barrister at Garden Court North Chambers who practices in human rights, public law, prison law and crime.
• Mark Newby and Matthew Stanbury acted for Ian Lawless.

Two high court judges (Lord Justice Beatson LJ and Justice Irwin) delivering the decision of the Divisional Court on the challenges of claimants to the refusal of the secretary of state for compensation have disappointed four out of the five claimants, including Barry George, with only Ian Lawless succeeding in his challenge.

In our last article we articulated the test under Section 133 of the Criminal Justice Act 1988 and the four categories of case to which the court must have regard in determining applications for compensation. These cases concentrated ostensibly on the category 2 case – namely where fresh evidence shows the defendant was wrongfully convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted.

The court posed a number of questions:

• When will a person be demonstrated to be clearly innocent so as to fall within category 1?
• In what circumstances will the evidence be so undermined by a new fact or facts that no conviction could be based upon the evidence, so that the case falls within category 2 in accordance with Adams?
• What is the proper approach for the secretary of state to take when considering the Court of Appeal quashing the relevant conviction?
• What test should be applied where there has been a re-trial after the conviction has been quashed?
• What approach should the secretary of state take towards the consideration of evidence?
• How should these cases be viewed in light of the considerations of the European Convention of Human Rights?

The decision in Adams
The starting point was to consider the decision in Adams and how the new decision approached how that test should be varied if at all from the formulation advanced by Lord Phillips in the Supreme Court.

As the court noted, there was within Adams some considerable difference of opinion as to the exact formulation and how that could be applied to particular cases. Lord Phillips had sought to develop Dyson LJ’s formulation to a test for category 2 cases to where the newly discovered fact or evidence had ‘so undermined the evidence against the defendant that no conviction could possibly be based upon it’.

The court in particular noted the difficulties that arose with differing interpretations in the Supreme Court and sought to achieve a test formulated in a practicable way and with reference to the system of Criminal Justice that applies in England and Wales.

As a result, and mindful of achieving a practical outcome, the court has proposed a variation to Lord Phillips’ test to be one in which the question is:

‘Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now considered.’

If that is now the correctly formulated test, this raises fundamental questions then as to how the secretary of state shall apply himself in the approach to the Appeal ruling that leads to the conviction being quashed – and indeed his assessment of the evidence which may remain for consideration.

This brings into focus the one case which was allowed by the Court, Ian John Lawless. The facts of this case are well-known, but in short Lawless was convicted of murder as a secondary offender. The only evidence against him came from his own confessions, which following expert evidence at appeal from the defence and Crown were universally concluded to be unreliable.

The secretary of state’s opening salvo in the matter was to advance the argument that because the applicant was not declared to be innocent by the Court, it was still open to the secretary of state to assess the evidence against him and conclude a conviction could still be obtained.

This was viewed by the court as unrealistic and, in any event, the test adopted by the court in assessing the safety of a conviction is not an innocence test but focuses on a wholly different consideration: that of safety.

Further the Court has now taken the opportunity to warn the secretary of state of seeking to step aside from a determination of the Court of Appeal noting that:

‘We cannot conceive of circumstances where it would be proper for the secretary of state to take a different view of a case from that of the Court of Appeal, save where the evidence has evolved after the hearing of the appeal.’

Equally bold arguments were advanced by the secretary of state on whether the secretary of state should be bound by the rules of evidence and procedures adopted in the criminal courts and deployed by Judges in the exercise of their primary judgment, particularly in cases which may be finely balanced.

The reader might observe that it would seem anomalous at best for the secretary of state to be allowed to place a wholly different interpretation on the evidence than that produced by the rules of evidence engaged in securing the conviction in the first place.

The court, whilst noting that such rules can sometimes lead to different exercises of discretion, and differing outcomes depending upon other evidence, took the view that:

‘None of this justifies the Secretary of State in dismissing the law of evidence, or the rulings of judges in given cases. It may be fair to use the term “technical” about the law of evidence in the sense of “difficult” or “complex” but it is never acceptable to deploy the term as meaning “not worthy of respect”.’

Further, in the same paragraph the court considered that in its view:

‘In the absence of a change in the evidence coming later than a given judicial ruling, we would consider it proper for the secretary of state to differ from such a ruling only in the rarest of circumstances and only on a fully reasoned basis.’

Which view by implication must mean that such a departing would have to be based on a proper consideration of evidence fully set out in accordance with the criminal law of England and Wales.

The consequence is that the secretary of state will no longer be able to get away with technical or convoluted arguments as to why a conviction could still be obtained without providing clear justification for it, which will then remain subject to scrutiny through judicial review.

The point is again illustrated by the Lawless case, in which despite the only evidence against the applicant having been shown to be unreliable, and the Crown not having pursued a retrial on that basis, the secretary of state had advanced an argument that a conviction could still have been obtained. This ignored the practical reality which is no judge with no evidence left before them would have allowed the matter to go to a jury for determination.

Re-Trials
If some gain has been achieved for applicants in regard to the way in which their applications must now be assessed, potential applicants will be greatly disappointed by the court’s views on the impact of retrials.

The courts concluded that the approach to be taken here is that the calling of a retrial will not be a bar to a successful application for compensation; but only where the retrial does not get past half-time If the retrial proceeds all the way to a determination by a fresh jury there is then a fundamental difficulty in answering the key question to qualify for compensation namely:

‘Whether a reasonable jury properly directed would not convict.’

The likely answer in such cases is that since the judge allowed the case to go to a jury, a jury might have convicted, and so – the judge’s determination being effectively binding – the test is not made out. This in a nutshell is why the case of Barry George failed, whereas had his case had been withdrawn from the jury at the conclusion of the Prosecution case, which as on one view it might have been, he may have been in a wholly different position in terms of securing compensation.

The jurisdiction of the court
The court has also sought to limit the ability of those refused compensation in the past to seeking to rechallenge those decisions, prescribing that only cases where the decision was made within three months of Adams will be entitled to be subject to reconsideration.

This is perhaps over restrictive and unfortunate for many applicants who have been waiting for years whilst Adams navigated its way through the Courts, and then these subsequent test cases, in the hope that something more hopeful might have come out of the decisions for them.

The court took the opportunity to confirm that the secretary of state’s decisions will only be susceptible to judicial review on the usual grounds rather than, as had been argued for, the court performing an appellate or substitutionary function – i.e., to make its own decision as to eligibility for compensation. The court considered that this was not the role Parliament had intended it to have and it would therefore retain only its normal role of assessing the reasonableness of the decision-making process. The result is that the secretary of state retains a very wide discretion, and one that he has rarely exercised favorably to applicants.

Finally, the Court took the view that such an exercise met the UK’s obligations under Article 6 (1) ECHR, such as they were engaged at all, and distinguished the case of Georgiadis v Greece [1997] 24 EHRR 606 which supported the proposition that the scheme was not operating in accordance with Article 6 (the right to a fair hearing by an independent tribunal.) Of course there is a current outstanding decision of the ECtHR in Allen, which concerns Article 6 (2) and whether the current scheme offends the presumption of innocence.

Where does this judgment leave future claimants?
Current and future claimants will likely find that their prospects of success are not improved in any substantial way by this decision; however they will at least now be able to have some confidence that the secretary of state will be required to respect judicial rulings on the state of the evidence, and to have proper regard to the rules of evidence that applied in the original and any subsequent trial. They should at the very least know that if the Secretary of State does seek to go behind such rulings, he must give reasons for doing so, that may be amenable to judicial review, and that he should only make such a departure in exceptional circumstances.

Those finding themselves in the invidious position of having faced a retrial should know that unless they it was stopped at half-time it is exceptionally unlikely they will ever achieve a compensation payout, however unfair that may seem.

Overall, they remain faced with a system in which the successive secretaries of state have demonstrated themselves only too willing to find ways to avoid paying out compensation no matter how hard the search for reasons to do so.

This inevitably will not be the end of the saga and appeals may follow from this case and the European Court is yet to deliver its own judgment in Allen. But in the midst of this, and the more technical arguments which have led to some of the current claims, failing it is easy to forget the fundamental issue which surely is: can it ever be right to deny the wrongfully convicted proper compensation for what the state has put them through?