A question I am frequently asked, is:
“If someone spends a long time in prison, and is finally released after a successful appeal, do they get any compensation from the State?”
The best answer I can give is: “It depends, but in the vast majority of cases … No “
People are usually surprised by this answer, as they expect that where there has been a miscarriage of justice, the government would recognise that harm had been done, and do at least something to help financially, even if money alone could never make up for years of loss of liberty and family life.
The reality is that although at the Court of Appeal, the sole test as to whether or not a conviction should be quashed, is whether or not the conviction was ‘safe’, it comes to government compensation, the ‘powers that be ‘are looking for a quite bit more than that.
Some years ago, when the issue was thought about by government, legislation was brought out to allow for compensation in cases where there had been a ‘miscarriage of justice’.
Section 133 (1) of the Criminal Justice Act 1988 was quite clear, providing that when a person had been convicted of an offence but subsequently his conviction was reversed… on the ground that a new or newly discovered fact showed beyond reasonable doubt that a miscarriage of justice had occurred…. then the State was under an obligation to pay compensation
So far so good, and quickly the courts began to interpret this section very reasonably. In the case of R (Adams) v Secretary of State for Justice  UKSC18 the Court adopted an approach that ‘miscarriage of justice ‘ within the meaning of s133 (1) would include : Cases where fresh evidence shows that the defendant is innocent of the crime of which he has been but also cases where fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could have properly convicted the defendant.
However, the government seems to have been far from happy with this interpretation , and quickly brought forward new legislation, which inserted into the original Act a statutory interpretation of ‘miscarriage of justice’ in this context, making it clear that this meant for persons convicted in England and Wales, a miscarriage of justice would only occur where a new or newly discovered fact showed beyond reasonable doubt that the person did not commit the offence. This ruled out the prospect of compensation for those in relation to whom new facts or newly discovered facts had resulted in overturning their conviction but in circumstances where it could ‘only ‘be said that no reasonable jury could have properly convicted them.
Now the whole effect of this is to restrict the payment of compensation to very few cases. The decision rests with Secretary of State.
The role of the Court of Appeal remains unchanged from that stated above, and it is no part of the process to cause the Court to make ‘declarations of innocence’ or the like, in order to smooth the way for compensation in any subsequent applications or proceedings. It is at least accepted that in its Judgment, the Court may well touch on these matters. For example, if the evidence presented makes it abundantly clear that the appellant could not have committed the offence, then this state of affairs is likely to be reflected in the judgment. However, appellants and their lawyers are seriously advised to stick to the matter in hand, namely securing a quashing of the conviction, and not running a parallel ‘fishing expedition’ to secure favourable comments in the judgement in order to support a compensation claim.
Nowadays the application for State compensation is managed through a gateway system online or by downloading a form at https://www.gov.uk/claim-compensation-for-miscarriage-of-justice
and anyone seeking compensation would be advised to see a lawyer and gain assistance in going through the process.
The process is not only complex it is very often a wholly fruitless exercise. In a response to a freedom of information request made by the Justice Gap, the Ministry of Justice has revealed that no compensation had been awarded in the last 12 months up to July 2021 This is the third year since the Coalition government restricted pay-outs with the introduction of its Anti-Social Behaviour, Crime and Policing Act 2014 that no money has been paid out section 133.
Many questions however still remain. Why is the availability of compensation so restricted? In my opinion, the current provisions effectively tell a recently released prisoner:
“The new facts and argument that you presented at your appeal were so compelling that it was concluded that ‘no reasonable jury would have convicted you ‘– but hard luck, since it did not definitively prove your innocence, you will get nothing”
Moreover, in the Adams case, the Judges also considered other circumstances where a ‘miscarriage of justice’ could have been said to have occurred, for example, ‘cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted’. This ultimately was not ultimately put forward in their judgment as a valid ‘miscarriage of justice’ warranting compensation. But pause for a moment and consider that this could result in an appellant being effectively told:
“We accept that the police investigated your case so poorly that much of the evidence which could have positively established your innocence is no longer available; but the very fact that this evidence is no longer obtainable removes your eligibility for compensation.”
In cases like this, it seems only when the misconduct is egregious and widespread (such as the Post Office scandal) will the government entertain making a special case. Even then, recent headlines tell us that the route to compensation is long, arduous and stressful.
So, there is plenty of food for thought for my friends and acquaintances who believed that successful appellants ‘boarded a compensation gravy train’ after their convictions were quashed.
As a final thought, I have to add that of all the people who frequently ask me this question, Clients are rarely included in their number. I can honestly say that those who believe they have been wrongly convicted are almost exclusively concerned with clearing their name and securing their liberty.
 The Justice Gap Online publication 15 July 2021
By Peter Large – Criminal Appeals Solicitor