IF YOU ARE SEEKING COMPENSATION FOR A MISCARRIAGE OF JUSTICE, READ THIS ARTICLE.
RESTORATIVE JUSTICE
AND MISCARRIAGES OF JUSTICE.
Until recently, compensating for miscarriages of justice were handled by the Home Office. Such compensation claims are now handled by the Ministry of Justice, but in parts of this article - and no doubt in other articles, the Home Office will no doubt still be mentioned.
The essential question that this paper seeks to elucidate is whether a branch of the Executive – in this case the Ministry of Justice - may, without reference to the Legislature, modify by guidance a statute which, when enacted, was deemed to have ratified an international undertaking by the government.
The statute in question is the Criminal Justice Act 1988 – and in particular section 133 of that Act. The international agreement that this was deemed to ratify is the International Covenant on Civil and Political Rights (ICCP) of 1976. The Ministry of Justice guidance is a note issued in 1997 as guidance to the Assessor of compensation for victims of miscarriage of justice.
The writer questions whether the guidance made by the Ministry of Justice so dilutes the effect of the Act as to cause it to be in contravention of the obligations undertaken by the government with regard to the Convention.
ABSTRACT
The response to the discovery in recent years of many miscarriages of justice has been wholly in line with long-established practices within the system of justice. There have been financial awards after an assessment of pecuniary and non-pecuniary losses suffered by the person who was wrongly-convicted. The role of the office of independent assessor for such compensation has been confined to such considerations because he is advised to treat such compensation claims as analogous to civil claims for damages.
It is argued here that this policy, often referred to as "payment for damages", is insufficient to right the wrong that the state has perpetrated on the individual. It is further argued that mistakes made in the manner in which the UK government responded to the International Covenant on Civil and Political Rights (ICCP) has caused such errors to be made, as well as contributing to the problem of miscarriages of justice by not ensuring a proper separation of powers.
In particular, it is noted that the government has failed to appreciate the particular damage done to a person who is wrongfully convicted. Miscarriages of justice are particularly hurtful occurrences, unlike most others. They constitute, in the minds of the victims, a betrayal of the protection that the state owes to its subjects, a system supported, in part, by the taxes and the votes of the victims themselves. This virtually unique character of the occurrence can have consequences not always appreciated by members of the judiciary, the legal system nor the government..
Victims of miscarriage of justice do not normally behave in the same manner as other prisoners – nor, in many cases, as persons who have suffered harm at the hands of the state or the courts. Because the unjust loss of their liberty causes such anguish, they tend to protest more and are often truculent. A long campaign to achieve a positive judgement by the Court of Appeal can transform a normally-adjusted person into an argumentative, unbalanced and socially-disassociated campaigner. Some have even been known to turn their backs on prison life altogether – because, they argue, they have no place there.
The wounds of a miscarriage of justice may well produce adverse reports in prison files. Even after release, some have been known to believe they have no future in normal society – and will refuse to take up a career or job which they were forced to abandon some twenty years before. Such attitudes generally count against them when an assessment of past pecuniary losses and future earnings potential is made.
The present system of assessment does not adequately produce restorative justice for persons unjustly convicted.
OVERVIEW
There is a gap in the system which produces the inadequate nature of restorative justice. It is in the breadth and depth of the evidence which the assessor is told to consider.
More than 200 cases have been referred to the Court of Appeal since the inception of the Criminal Case Review Commission in 1997. Some 150 cases or more are currently being considered by the Ministry of Justice for compensation. The system, and the funding, for dealing with miscarriages of justice in both the Court of Appeal and the Ministry of Justice has changed little since the Criminal Case Review Commission was formed. It is inadequate to the task and, whilst acting reasonably, ultimately causes a failure in the government’s moral obligations to the victims of miscarriage of justice.
The Ministry of Justice Assessor ( currently Lord Brennan) , assesses compensation for victims of miscarriage of justice. He is guided by the Ministry of Justice note which requires him to treat assessment as he would in a civil case. He makes his assessment in two main areas.
The pecuniary claim considers how much financial loss the subject incurred as a consequence of wrongful imprisonment.
This assessment is largely based on the earnings of the claimant at the time of arrest – with a judgement as to what the potential earnings might have been during the time of the incarceration. Factors such as intelligence, work ethic and how the prisoner worked whilst in prison are taken into account. Having attempted to place the claimant within a certain band of wage earners by such means, reference is made to national average earnings for such a person over the years of incarceration.
Many victims of miscarriage of justice are persons in late teens or early twenties when incarcerated, and they are often the main complainants about this area of assessment. They argue that this can be a difficult and unfair process in dealing with them. True potential often only emerges in a person’s later years when they have "settled down" in life.
One might also add that intelligence and work ethic are not always the key to success in business. Although they may be essential in the legal professions, they are not necessarily so in other areas of life. Some people live very well off their charm and their ability to cheer other people up. Others might turn to doing dangerous jobs for high wages – jobs which more intelligent persons might well think it foolish to do.
Another common source of complaint in assessing the pecuniary losses, is that the Assessor deducts 25% from his award - an amount representing the expenses that the claimant would, if at liberty have spent on the necessities of life. This decision was upheld as correct in the Bridgewater appeal.
The arguments about this aspect of the assessment continue. Some say that, if someone at liberty chose to spend 25% of his or her income on accommodation, he or she would choose to live without privacy, sharing, perhaps, with two or three disreputable characters in something akin to a box room, often for 22 hours per day with only canteen food available and sometimes with only rudimentary toilet facilities.
One can see how some victims of miscarriage of justice may well resent having to pay for a part of their prison accommodation and why the role of the Assessor in this area has become the subject of some controversy.
However, it is against the other side of the Assessor’s considerations that most resentment can be found.
The non-pecuniary claim considers all other aspects of the case. These include treatment of the subject throughout the trial process. Expert evidence is produced by the lawyers for the wrongly-convicted person to aid the Assessor in deciding a sum for compensation. This normally covers only the psychological trauma suffered by the wrongly-convicted person whilst in prison and centres on how the subject came to be wrongly convicted, i.e. how he or she was badly-served by the system of justice.
The same approach to assessment is made in this area as in the pecuniary claim. A simple "payment for damages done" approach is the prime objective.
The most common cause for complaint in this area is that, when considering the evidence on how poorly the subject was served by the system, the Assessor, in trying to find a firm basis for his assessment, will only consider the grounds of appeal which were accepted by the Court of Appeal as being cause for quashing the verdict. In other words, he relies upon the Appeal Court judgement for his assessment. This limitation on the scope of the Assessor’s inquiries can leave much out of the whole story – and cause a severe deficit in the restorative justice aspects in the case.
There would appear to be good reason for such a view. When the office of Assessor was created, it was determined that, in accordance with section 133 of the 1988 Act, the Assessor "shall have regard to":
"the conduct of the investigation and prosecution of the offence"
Complaints against the police and the manner in which the trial was conducted rarely come before the Court of Appeal. The generally provoke fierce defence by the Crown and this can obscure more important evidence in favour of the appellant.
Furthermore, such evidence is rarely presented because it falls foul of the "fresh evidence " rule. Malfeasance by the police occurs before the trial – and therefore evidence of it was, technically, available to the defence at the trial. It is therefore easy to dismiss it as inadmissible at appeal.
Solicitors also know that it has always been safer to present either legal points to the Court of Appeal – or faults in the scientific evidence of a case. Complaints against the police usually involve gathering witness evidence - and witnesses are almost invariably influenced by the powers of the police.
Additionally, the police always seem to have unlimited resources when they investigate such claims – whereas appellants invariably work on tight budgets.
Another reason for not presenting evidence about police malpractice is the politics of the judicial system. It is well known that the Court of Appeal in the past has resented having evidence brought to it suggesting that police officers lied. Such matters tear at the fabric of society and the system of justice. Solicitors find that it is far better to drop any such allegations if other persuasive evidence is being presented.
Furthermore the Court of Appeal has frequently stated that it is not a court of inquisition. It will not conduct any further investigation into any anomaly in evidence which it hears, even though it may chose such an anomaly as its reason for finding in favour of the appellant. So, even if the evidence of a police officer appears suspect, the Court will not order any further investigation.
There are many other reasons why only a small section of the possible evidence comes to be presented to the Court of Appeal. And indeed, it is common to find that there are many considerations in such a case which are not matters that the Court of Appeal has either a duty or a responsibility to consider.
THE JUDICIAL SYSTEM - THEORY AND PRACTICE.
A common factor in most miscarriage of justice cases is the line of defence taken at trial. Most solicitors involved in such cases have little previous experience of a miscarriage of justice – for they constitute a very small percentage of cases. It is common in the legal system to argue that because an accused is "innocent until proved guilty" then the proper stance of the defence is to wait to hear the prosecution case – and then answer it.
Attempting to "answer the charge" several months after the event can prove difficult if a more pro-active investigation of the case has not been made. Even with the present rules on disclosure, the impact of certain areas of evidence cannot be fully appreciated until the trial hearing. By then it is too late to pick holes in the prosecution because to do such would entail hours of research that would delay the trial: the judiciary cannot allow that.
The experience of those who have re-investigated supposed miscarriage of justice cases is that a more pro-active approach is essential. This is necessary because the subject is no longer "innocent until proved guilty", but is already declared guilty and must therefore be proved innocent. In effect, the option of "answering the charge" is not available at this stage of the trial process.
However, it is generally agreed that if such a pro-active approach had been made before the trial the miscarriage would not have occurred.
In such circumstances - when someone is convicted because the trial solicitor merely "answered the charge" - no lawyer, nor any member of the judiciary will argue that the original defence team was incompetent. They may well have presented a good case in a skilful manner. Nevertheless, the line of evidence produced, the scope of research done into aspects of the case not touched upon by the prosecution, may well have caused the miscarriage of justice
Such matters would not be entertained by the Court of Appeal, nor even by the Law Society complaints department; and rightly so. They may well, nevertheless, come within the legal investigative responsibilities of the Assessor for compensation.
There are other institutions involved in the trial process, which may well obstruct the system to the point of constituting a breach of the individual’s right to fair trial process, but which are unlikely to come within the scrutiny of the Court of Appeal. One is the Ministry of Justice particularly in cases which occurred before the creation of the Criminal Case Review Commission in 1997; another is the police who, when they discover they may have helped to imprison an innocent man, sometimes take every step possible to hinder any re-investigation . This may be added to by lack of complete transparency on the part of the Crown Prosecution Service. The Court of Appeal may well find that the internal affairs and disciplinary measures of such institutions are no part of its business.
The most common reason why much of the evidence in favour of the appellant does not come before the Court Appeal is the editing of the grounds of appeal. This is a further demonstration of how practicality and economy can militate against the higher aspirations of the system of justice, for it is such considerations which can bring about severe editing of the evidence.
The main causes of this are:
a) The current Criminal Appeal Act seeks to limit the powers of the Court of Appeal, so that, in general, only the evidence presented in the reference from the Criminal Case Review Commission can be presented as grounds of appeal.
b) The Criminal Case Review Commission has no duty to consider all possible areas of evidence in a case. It merely needs to assess whether or not there are sufficient grounds to support a reference back to the courts. The Commission further does not have the time, nor the resources to investigate every aspect of petitions sent to it.
c) The Court of Appeal has a problem with allocation of time to cases and welcomes capitulatory moves by the Crown when an assessment of one aspect of the evidence is deemed sufficient to merit the appeal being uncontested.
These limitations occur because of the strains put on the judiciary by the work of the Criminal Case Review Commission The entire legal system is now geared to dealing with miscarriage of justice cases as swiftly as possible. Time is of the essence and any action taken to shorten consideration of a case is welcomed. The CCRC therefore looks for one conclusive piece of evidence in order to be able to refer a case. The Crown Prosecution Service seeks those cases where it can properly agree that it will not contest a case, the Court of Appeal welcomes any such actions, by solicitors and counsel for the appellant and the Crown, which shorten appeals.
All of the above saves time, and therefore money. The practice is deemed to be an efficient use of resources. The consequence, however, is that those who suffered from the miscarriage of justice find themselves with inadequate consideration of the trauma they have suffered. They do not have the opinion of the Court of Appeal on all aspects of the case – even those aspects of the case that the Court might properly deal with..
In addition to this, by allowing his assessment to be largely confined to evidence given in the Court of Appeal, the Assessor takes little account, if any, of events, the facts of which might be contested, that form the basis of allegations by the victim of a miscarriage of justice against institutions outside the purview of the Court of Appeal, in particular the Ministry of Justice and the Prison Service.
Furthermore, the role of the Assessor is entirely retro-active, it is not in any way pro-active. He merely seeks a financial sum which will constitute proper compensation, but the assessment, as restricted by the Ministry of Justice note, is made on only the surface of the injustice. As a consequence, damage is done to the individual..
This is not what most persons unjustly convicted deem to be restorative justice. They feel cheated, tricked and let down by society – a society they have helped support through their taxes. Such a person may well have been incarcerated for perhaps a third of his or her life, suffered ignominy and shame, perhaps lost all touch with family, lost all hope of forming any relationship with the opposite sex and developed no skills for dealing with the world outside of prison. Any friends such a person may have may well be all genuinely guilty of crimes and who often have evil intent, even resentment, towards anyone who has "beaten the system".
Most victims of miscarriage of justice find themselves institutionalised to the point when they cannot use the money given to them to reclaim their proper position in life. Many are on drugs, most do not know the current value of money – and are befriended by persons ( many ex-convicts) who merely seek to take advantage of the compensation.
To such persons, a large credit in the bank may well be something of a liability. They are expected to handle their affairs in a way they never dreamed of. They are supposed to suddenly acquire experience that most of us gained over decades. They have no idea about arrangements such as mortgages, deposit accounts, ISAs and other such financial opportunities. Nor have they any idea of the use of financial advisors – regarding them in fact as "smart men" wishing to steal their money.
The system has no thought of restoring such a person back into society by any other means than giving them a large amount of money. And even the amount that the State gives or that purpose is rarely enough to form a solid base on which a victim of miscarriage of justice might build. If such a victim buys a house with the amounts currently being offered, they will need to get a job if they are to live comfortably in that house – yet few have training to obtain anything other than the most menial of jobs for they have no work experience and may well come to the job market, effectively for the first time, in their middle age.
In fact they frequently find themselves penniless and without their "new friends" within a few years. There is no element of protection against such dangers in the compensation awarded by the Assessor. Having paid up, the State washes its hands of the victims of its own failings.
Ironically, some victims of miscarriage of justice report that they feel they are expected to be grateful that the system has finally acknowledged that a mistake was made. Any suggestion by such victims that more than a simple "payment for damages" should be made is regarded by some with more secure standing in life with astonishment. After all, was not a wrong conviction righted?
With this in mind, we might consider if the Ministry of Justice note, (formerly the Home Office note) restricting the scope of Section 133 as it is said to do, might not conform to the requirements of International Law as it should if Section 133 is indeed proper ratification of the International Covenant on Civil and Political Rights (ICCP) of 1976. The Assessor operates a system which is, as noted above, after all, a system entirely based in compensation without any consideration of reparation.
THE LEGAL BACKGROUND.
SCOPE OF THE ROLE OF THE ASSESSOR
I.
THE ADMISSIBILITY OF EXCULPATORY EVIDENCE TO THE ASSESSOR.
The office of the Assessor was created by the 1988 Criminal Justice Act. Section 133. This Act was deemed to be the British Government’s ratification of the International Covenant on Civil and Political Rights (ICCP) of 1976 and accepted internationally as such.
The key section of section 133 relevant to most miscarriages of justice reads:
"The assessor ….. shall have regard to…
(b) the conduct of the investigation and prosecution of the offence."
3.
In 1997 the Home Office issued guidance in the form of a note which contained the words " in reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs."
4.
Sir David Calcutt, as Assessor, expressed his view on this note:
"an assessor, while having regard to the level of awards made in respect of various torts, should seek to make an overall award which reflects the overall wrong which has been done by reason of the miscarriage of justice."
Two key questions emanating from the above are:
a) Is the Assessor limited, when considering the non-pecuniary claim, to considering only evidence which was presented to the Court of Appeal and accepted by the court when the conviction was quashed?
b) Does the lack of an adversarial element in the assessment preclude consideration of evidence not previously tested within the judicial process?
THE BRIDGEWATER APPEAL.
The Bridgewater Appeal is the judgement most relevant to the present discussion. However, this judgement is largely concerned with the general principles governing the assessment, not the probative basis of the facts used in argument during that assessment.
The Court considered the role of the assessor and contrasted it with that of the courts.
1.
Lord Justice Auld remarked:
a) " I should explain that , consistently with Article 14 (6) of the ICCP, which does not require that compensation should be assessed by a court, but "according to the law", the independent Assessor’s role is an administrative, not a judicial, one.
b) "He deals with the whole matter on paper and in private, not by way of oral hearing, and his awards are confidential to the claimant.
c) "It is thus not like adversarial litigation in civil actions for damages ( or even proceedings before the Criminal Injuries Compensation Authority under the Criminal Injuries Compensation Act 1995, where there is an adversarial element). He has limited means of testing the facts relied upon by a claimant in support of his claim. There is no contrary case advanced by an opponent, nor any testing of the claimant’s case other than by the Assessor who, in addition to attempting to award him a fair sum for his suffering, also has responsibility to safeguard public funds."
This judgement accepts that the Assessor has limited means of testing the facts of a case – and that there is no adversarial element in the process of assessment. The judgement does not, however, determine that the Assessor’s considerations should be limited to facts already tested within an adversarial context.
By omission, Lord Justice Auld’s judgement suggests rather the reverse - that the Assessor can consider facts relating to arguments that have not already been tested within an adversarial context and that he may make his own mind up about the provenance, probity and forensic value of such facts and arguments.
2
A later remark by Lord Justice Auld suggested a similar line of thinking:
d) "The fact that, for want of the rigour of a trial process, his ( the Assessor’s) award may not be as well-founded as it might have been, or that he may have to approach the task with more caution than he might have done, if the issues had been forensically tested, should not affect the validity of his reasoning in considering and identifying the make-up of his award."
The implication of this part of the judgement is that the Assessor may consider facts and arguments that have not been forensically tested, though he should treat such elements with added caution because they have not been tested within an adversarial context.
3
Lord Justice Auld later remarked:
e) "It is for the independent Assessor to consider each claim and the manner of its make up on its own facts."
In this sentence, the "facts" for the Assessor "to consider" relate to "the claim" – not any prior judicial judgement. The "claim", may, of course, include facts relating to arguments not previously presented to any court.
4
There is even a section of the Bridgewater appeal in which it is asserted that the judgements of the Courts may, with explanation, be disregarded by the Assessor.
Lord Justice Auld quoted Mr Tam, for the Home Office, who had submitted that,
f) " though a desirable aspiration, it is "elementary" that there is no general legal requirement of consistency in administrative decision-making or in the exercise …"
Lord Justice Auld then quoted a case in which Lord Justice Laws had said:
g) " A duty owed to one decision-maker – A - to take account of the views or decision of another decision-maker – B - upon the same or overlapping issue means nothing whatever unless A has to engage with what B has said: to explain, however, shortly, why he differs from it he does."
Lord Justice Auld concurred with this view:
h) "Whilst consistency between decision, judicial or administrative, on similar issues and facts is always desirable, it is not always achievable where there are different decision-makers …………. As Moses J said in ex p- Wilkins, the concept of consistency does not require a decision-maker to repeat what he regards as a past error…"
5.
The judgement also considered it correct that, in assessing the non-pecuniary claim, evidence not heard by the trial jury, nor any subsequent appeal court, should be considered by the Assessor.
Lord Justice Auld supported the earlier judgement in agreeing that Lord Brennon had been correct in taking into account
i) "Hickey’s past criminality."
This is, in fact, in accordance with Section 133 of the Act - which states that, in assessing compensation, the Assessor :
"shall have regard to any other convictions of the person and any other punishments resulting from them"
6.
When considering the role of the Assessor, Lord Justice Auld also remarked:
j) "To assist him in his assessment, he may seek the assistance of an accountant instructed for the purpose by the Secretary of State. The Home Office, then, in consultation with the applicant, prepares a written memorandum for the assistance of the Assessor."
Although this particular assistance is limited to that of an accountant, it demonstrates that there is already in place a system for the introduction of expert advice to assist the Assessor. It would seem from this that the Assessor may, with the agreement of the Home Office, employ, and rely on the report of, an expert in order to assist him in his assessment.
Furthermore, the line of consultation would appear to be
The procedure currently in place in the general assessment relies on expert opinion which has been taken by the solicitor and counsel for the claimant. This may be believed, or not, by the Assessor – yet he is not an expert and must judge the reports by such experts without the aid of his own expert’s advice. However, there would appear to be nothing in law to stop the Assessor taking expert advice; such an innovation might satisfy him more fully when considering points of evidence in the case which might have been presented to the Court of Appeal, but which were withheld because such was deemed not necessary when the strength of the main points in the grounds of appeal were considered.
THE MINISTRY OF JUSTICE (FORMERLY HOME OFFICE) NOTE ON THE ROLE OF THE ASSESSOR.
Against the above interpretation of the role of the Assessor is the content of a Note issued by the Home Office in 1997 which reads:
"In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs."
In civil law, damages as invariably reduced to a financial consideration based solely on evidence produced and tested before the courts. This would appear to support the argument that the Assessor may only consider evidence already produced before the Court of Appeal – and accepted as proof of innocence, by that Court.
However, this may not be the proper inference to draw from the Note – for elsewhere it states:
"The payment is made in recognition of the hardship caused by a wrongful charge or conviction and notwithstanding that the circumstances may give no grounds of a claim of civil damages."
If the Assessor is to consider evidence that would not form a successful suit for civil damages, then such evidence would surely not constitute proper grounds of appeal in the Criminal Division. Furthermore, the assessment is of "hardship", a very broad term which may cover a wide variety of suffering. This is defined further in the Note as:
"Damage to character or reputation, hardship, including mental suffering, injury to feelings and inconvenience"
SELF-LIMITATION DECIDED BY THE ASSESSOR.
Sir David Calcutt, as Assessor, elsewhere broke down his assessments of non-pecuniary suffering under seven heads:
1.loss of liberty simpliciter
2. misconduct
3. reputation
4. personal injury
5. psychiatric damage
6. conditions imprisonment
7. injury to feelings/ affront to dignity
Only under heads 1 & 2 might the Assessor be likely to find evidence, emanating from the Court of Appeal, that would help him.
Lord Brennan further placed a limitation on these headings.
" I do not consider that there should be an assessment approach based on listing them each in turn, making an award for each in turn and aggregating the total. That is to convert the process of compensation into a mathematical analysis which is highly unlikely to be realistic or reasonable."
He justified this view by adding:
"There is inevitable merging or overlap in factors which should be taken into account so as to produce a fair overall total."
Those who have suffered a miscarriage of justice might consider that this is faulty logic – that in fact, rather than "merging or overlapping", the more wrongs that are perpetrated on a person as per David Calcutt’s list, the more the damage. Just as with each punch or kick in a mugging, one injustice piled on top of another does not decrease the level of suffering; the increase is exponential. It is bad enough if one is wrongly incarcerated, but to realise that this was done primarily by a police officer whose salary was paid out of one’s taxes perhaps doubles the hurt. The damage increases, it does not lessen as Lord Brennan might claim. If such a situation were to drive one to insanity, from which one might never recover, once again the damage done is exponentially greater, not exponentially less.
SCOPE OF THE ROLE OF THE ASSESSOR
II
THE ASSESSOR’S POWERS TO CONSIDER ACTIONS AGAINST THE INDIVIDUAL OTHER THAN BY THE COURTS.
The "trial process" under review in this paper is the manner in which allegations of miscarriage of justice are dealt with. Within certain constraints, anyone found guilty at trial has a right of appeal. This right does not, however, extend to a further appeal should the appeal at first instance be unsuccessful. The system demands "finality" and demands that "fresh evidence" be produced before any second appeal be granted.
In the past half century there have been two systems used to consider whether a petitioner should be granted a second appeal.
The present office that deals with such matters is the Criminal Case Review Commission (CCRC). This is financed by the Ministry of Justice and reports to the House of Commons Select Committee on Home Affairs as well as to the Ministry of Justice. It publishes the names of cases that it refers back to the Court of Appeal, though it does not publish the details of the reports it has complied in such cases. Nor does it publish details of cases which it refuses to refer to the Court.
The CCRC was created because of deficiencies detected in the former system. The office with such responsibilities before 1997 was much more secretive than is the CCRC. It was called by various names, but was generally known as C3.
C3 was manned by lawyers, though their names were never made public, nor their qualifications in the law. The Division came into being because the Home Office had been given power to act under section 17 of the Criminal Appeal Act 1968 to refer cases back to the Court of Appeal. Those powers were wide-ranging - the Home Secretary was empowered to refer a case back the Court of Appeal " if he thinks fit".
C3, though entirely within the administration of the Home Office, became effectively an integral part of the trial process – because no second appeal could be entertained by the Court of Appeal without its approval. C3 was the only element in the trial and appeal process that came entirely under political control; there was no separation of powers in this area of the process.
Many thought this "star chamber" element only illusionary – arguing that the Court of Appeal had ultimate powers and could hear any case it cared to. However, in R v Pinfold (1988) the Court of Appeal held that it had no jurisdiction to entertain a second application for leave to appeal in the same case even where fresh evidence had emerged since the dismissal of the earlier appeal. This confirmed what had been common practice for many years. In other words, the Court of Appeal was not a place where a wrongly-convicted person could go after losing a first appeal. The only office where one could continue to exercise one’s right of appeal was the Home Office.
There was, in law, no restriction on the Home Secretary in referring cases, for he only needed to "think it fit" to be able too refer a case back to the courts. However, in practice the Home Office operated within strict self-imposed limits.
The primary basis of these limits was that the Home Office would not refer a case back to the court to reconsider matters it had already considered – the "fresh evidence" rule.
A secondary consideration was the possible consequences in the Court of Appeal. If the Home Secretary thought that, notwithstanding the fact that there was new evidence of substance, the Court of Appeal would still dismiss the case, then he would refuse to refer it. This was, in part, a constitutional consideration in that the Home Secretary did not wish to be seen to be trying to usurp the powers of the courts.
The consequence of this secondary consideration was that such decisions tended to become subjective. They were taken in part in response to the political moods of the day, not only at times such as Party Conferences and elections when politicians tend make promises on law and order, but in response to pronouncements on cases by the Court of Appeal – and in particular the Lord Chief Justice.
The situation placed great power in the hands of the 13 lawyers in C3. They were asked to apply the same considerations to evidence that the Appeal Court would later apply. In effect, they had the duties, and indeed many of the powers, of the Appeal Court judges.
However, C3 did not have the responsibilities to the law that the Court of Appeal has. Nor were its considerations made in public as those of the court are. For many years it did not need to justify its decisions to anyone - other than its political masters. And when it eventually felt the need to do so, it could successfully evade and avoid any further discussion of its decisions.
In spite of this, C3 was the only office that had a duty to make any official re-investigation of suspicious cases. The Court of Appeal does not, and did not, consider itself to be an inquisitorial institution, even though it has the powers to make its own investigations.
An opinion of the Court of Appeal made the decisions of C3 even more difficult. The Court, and in particular Lord Chief Justice Lane, did not consider it helpful to investigate, or even hear, criticism of the police. This became clear in 1988 when, in his judgement on the appeal of the Birmingham Six, Lord Lane said:
"as with many cases referred by the Home Secretary to the Court of Appeal, the longer this case has gone on, the more this court has been convinced that the jury was correct."
The then Home Secretary, Douglas Hurd, said that he had learned from a rebuke such as this, that doubts a Home Secretary might have about an individual case were not welcomed by the Court of Appeal.
One might therefore ask, if the Court of Appeal did not want the Home Secretary interfering, by referring cases back, and if the Court of Appeal would not accept cases directly, where else could a victim of miscarriage of justice exercise the right of appeal?
The views of the Court of Appeal on references had been known for many years before Lord Lane’s outburst in 1988 and had been reflected in the deliberations of C3. Those deliberations and the policy behind them were largely confidential. No explanation needed be given - until a change that took place in 1981.
The idea of an independent tribunal to replace C3 and the role of the Home Secretary had long been promoted by senior legal figures. In 1981 the Home Affairs Committee had suggested it – and wrung from the government a notable concession. This was that the Home Office would:
"provide an explanation when a petition for intervention by the Home Secretary is refused"
It was this commitment which allowed "Justice" to enter into argument with C3 about petitions in case of alleged miscarriage of justice. However, the work done hardly produced any worthwhile results – except in exposing the over-riding powers of C3 and its inadequacy for the task assigned to it..
There were few responses by C3 to the "Justice" petitions. But those that were sent, in the form of letters, reflect a policy very mindful of the opinion of the Court of Appeal, which was later expressed publicly by Lord Lane, that in "many cases referred by the Home Secretary.. " the Court of Appeal has " convinced that the jury was correct."
The policy adopted by C3 in carrying out its duties and responsibilities was effectively exposed as being a denial of an appellant’s right to appeal – a right which had always existed in the Court of Chancery and which had been enshrined in various statutes since 1907. Nor did it follow the spirit of the Criminal Appeal Act 1968 which allowed the Home Secretary to refer cases "as he saw fit".
During the various exchanges with "Justice" in the mid-eighties, evidence of C3’s policy – backed by the Home Office began to emerge. A general view began to form that C3’s investigation were largely confined to "answering the charge", rather than making a full investigation of the cases sent to them. This meant that the police officers re-investigating the case would largely be charged with ensuring that the prosecution case at trial would withstand the strength of the "new evidence". That had long been an attitude displayed by the Court of Appeal. It was also a policy that C3 was pushed into by forces greater than itself.
New factual evidence was generally not successful in the Court of Appeal. The Runciman Commission research showed that 60 % of successful appeal had been based on error by the trial judge.
Even if malpractice by the police was demonstrated, this did not mean that a conviction would be automatically quashed - if other evidence persuaded the Court of Appeal that the conviction was safe. This was so even though the newly-proven malpractice might suggest that other evidence in the case might have been similarly obtained.
In a Fabian pamphlet published in 1986, Tom Sargant, the Secretary of "Justice" from 1958 to 1983, who had more experience of cases of miscarriage of justice than any other person outside the Court of Appeal, and perhaps even more than that, wrote:
"The Court of Appeal has bound itself in fetters which prevent it doing justice to the true facts of a case, namely:
Such were the considerations that C3 had to take into account when re-investigating cases, bound as the office was, by the political desire to ensure that the Court of Appeal would not reject a case which was referred to it by the Home Secretary.
This, combined with other sentiments emanating out of the Court of Appeal, meant that allegations of police malpractice were rarely entertained by C3. Their policy was often demonstrated by the fact that C3 would use the same police force that had conducted the investigation to make the later re-investigation of the evidence contained in a petition. This practice was eventually changed after representations from "Justice".
A victim of miscarriage of justice would discover that there was very little evidence that might have a reasonable chance of success. C3 lawyers spent much of their time avoiding replies which touched on the realities of the situation – by using spurious excuses and other evasive techniques to answer petitions. After all, there was no one to complain to about their manner of replying to petitions.
The rebuke by Lord Lane to the Home Secretary , referred to above, seems to be the moment in history when the mood changed. It touched on the nub of the problem – a part of the judicial process had been placed outside the powers of the courts and into the hands of politicians.
In 1993 Sir John May reported on the Irish bombing convictions. He wrote:
"The very nature and terms of the self-imposed limits on the Home Secretary’s powers to refer cases have led the Home Office only to respond to the representations which have been made to it in relation to particular convictions rather than to carry out its own investigations into the circumstances of a particular case or the evidence given at trial……….the approach of the Home Office was throughout entirely reactive, it was never thought proper for the Department to become pro-active."
Later that same year, the Runciman Commission concluded that:
"it is neither necessary, nor desirable that the Home Secretary should be directly responsible for the consideration and investigation of alleged miscarriages of justice as well as being responsible for law and order and for the police."
In 1996 steps were taken which led to the abolition of C3 and the establishment of the Criminal Case Review Commission. This is a more independent body, though it is still funded by the Home Office and is still subject to any winds of change in the Court of Appeal.
Many cases of miscarriage of justice now awaiting awards from the Assessor of Compensation appointed by the Home Office suffered delay and, indeed, injustice as a consequence of this intrusion by the Home Office in the appeals process in the eighties and nineties.
CAN THE ASSESSOR COMPENSATE PERSONS FOR ACTIONS TAKEN BY C3.
The Office of the Assessor, for want of any other competent body, is the only institution that may consider the government’s role in the fair trial process as it was in the eighties and nineties . Furthermore, the Assessor is the only office which can determine compensation for any unjust delay in the trial process caused by government.
Section 133 of the 1988 Criminal Justice Act does not specifically give the Assessor the duty to consider actions by the government in determining his award. Perhaps the nearest the section comes to that position would be that the assessor should consider
"the conduct of the investigation and prosecution of the offence"
If one accepts that this pertains to "fair trial process", then this phrase would encompass the entire process, including the government’s intervention in it by means of the office of C3.
Furthermore, other law suggests that it would be proper, and indeed a duty, for the Assessor to consider the role of government in this matter.
The Office of the Assessor, created, as it was by the 1988 Criminal Justice Act, is a consequence of the UK government’s ratification of the International Covenant on Civil and Political Rights (ICCP) of 1976. This was acknowledged by Lord Justice Auld in the "Bridgewater" appeal:
"Section 133 was enacted to give effect to the United Kingdom’s treaty obligations upon ratification of the International Covenant on Civil Rights and Political Rights "the ICCP" in 1976, article 14(6)"
He then quoted from the treaty:
"When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. "
The ICCP, in its preamble, broadens the scope of the obligations on ratification beyond that which is currently accepted as being within the responsibility of the Assessor.
"Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,"
One might question whether the UK government in the second half of the twentieth century created conditions whereby victims of miscarriage of could enjoy their civil right to be granted proper consideration of a petition ( to C3) for appeal.
Another article of the ICCP states:
"To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that any person claiming such a remedy shall have his rights thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;"
This article specifically mentions that there should be effective remedy to violations committed by judicial, administrative or legislative authorities. There was no effective remedy to adverse decisions by C3, even though many of their responses were at best incompetent and at worst corrupt. Consideration of the quality of the work of the Home Office and in particular that of C3 clearly comes within the scope of this article.
The UK ratification of the ICCP depends on the creation of proper authorities to implement the terms of the treaty. The establishment of the Assessor under section 133 being the only UK government response in this area, that Office must, perforce, adhere to the terms of the treaty – and therefore consider complaints by wrongly-convicted against administrative and legislative authorities.
It might be argued that such complaints against a government department are a separate issue – and that they should be argued and judged by a separate tribunal, the Assessor only entering the matter after a judgement has been made on the facts.
However, the establishment of such a tribunal might prove difficult. It would need to consider events and the efficacy of practices of two decades ago. The current practice in judicial reviews would hardly suffice. They rarely concern themselves with reflections on events and policies in previous decades. They are hardly equipped to do more. But beyond a judicial review, it is difficult to find any authority with the necessary power to investigate the working of the Ministry of Justice and to reach a judgement which might be binding on that department of government. There is no Ombudsman overseeing the workings of the Ministry of Justice, the Home Affairs Committee in the House of Commons has no power of sanction. One would require a special committee of inquiry, or a motion in the Commons – or the Lords.
However, though no such tribunal has been established, it can be argued that there is no need for one. With reference back to the quotation above from Lord Justice Auld, - though, for want of the rigour of a trial process, the Assessor’s award may not be as well-founded as it might have been, that should not affect the validity of his reasoning in considering his award.
Furthermore, as pointed out above, there would seem to be no barrier stopping the Assessor from engaging an expert to advise him on how detrimental to the individual the work of C3 was in any particular case.
SCOPE OF THE ROLE OF THE ASSESSOR
III
THE DEFINITION OF COMPENSATION WITHIN THE CONTEXT OF INTERNATIONAL LAW.
International Law has generally been formed to deal with malfeasance of governments and the consequent loss of human rights to its subjects. Reparation for such malfeasance has therefore generally been assessed not simply to compensate for mistakes made by individuals working within a legal and judicial process, but to compensate for malfunctioning systems of law constituted by governments.
The current practice in English Law is to award compensation for a miscarriage of justice in criminal trials in similar fashion to the award of damages in civil trials. No one contemplates any kind of reparation beyond financial compensation as assessed by the Ministry of Justice’s independent Assessor.
This might seem to be clearly in line with International Law, for section 133 of the 1988 Criminal Justice Act is, effectively, the British Government’s ratification of the International Covenant on Civil and Political Rights (ICCP) of 1966 which covers "compensation".
"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."
However, since that ratification, the concept of compensation has moved away from simple financial recompense towards "reparation". It may be argued that the simple "payment for damages" approach, as taken by the Ministry of Justice Assessor, is insufficient to conform to the responsibilities inherent in such moves.
Although no consistent reparations policy has emerged from international discussion of violations of human rights, there is nevertheless, reasonable consensus about the obligations of states to make reparations for violations of human rights.
The Universal Declaration of Human Rights of 1948, the founding document on international human rights states that that any person unlawfully arrested, detained or convicted has an enforceable right to compensation – but adds:
"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or laws."
One might question whether "simple payment for damages" is enough to provide "effective remedy".
This concept has been further defined in the past half century.
The European Court of Human Rights has expressed the opinion that the state should do more than financially compensate the victim. Rather, it should effect restitution so that the victim is restored to the position he or she held before the violation.
Further examples of support for reparation can be found in:
The International Covenant on Civil and Political Rights (1966, mentioned above)
The Declaration of Basic Principles of Justice for victims of crime and abuse of power (1985)
The United Nations Security Council resolution on the Establishment of the UN Compensation Commission (1991) and the 1993 study by that Commission (UNHCHR) concerning the right to restitution, compensation and rehabilitation of victims of violations of human rights.
A more clear shift of emphasis from simple "compensation" to "reparation" emerged when, in January 2000, the United Nations Compensation Commission drew up a report which confirmed that in order to comply with their international human rights and humanitarian law obligation, states must adopt:
It further stated that states must provide victims with appropriate mechanisms for accessing and receiving reparations.
In studying this report, the South African Reparation and Rehabilitation Committee noted that "reasonable consensus has begun to emerge as to what such reparation should entail. Significantly, in almost every instance, the remedy envisaged goes far beyond individual monetary compensation."
The aforementioned UN Commission (UNHCHR ) recommended that when there had been violation of the International Covenant on Civil and Political Rights, reparation should include:
In 1998 a UNHCHR working group (on enforced disappearances) drafted principles on possible forms of reparation. This included:
"Compensation should be provided for any economically assessable damage resulting from violations of international human rights and humanitarian law such as :
Physical or mental harm, including: pain, suffering and emotional distress
Lost opportunities including: education
Material damages and loss of earnings, including: loss of earning potential, harm to reputation or dignity, costs required for legal and expert assistance, medicines and medical services and psychological and social services
Rehabilitation should include medical and psychological care as well as legal and social services."
It also added that there should be satisfaction and guarantees of non-repetition.
It would be facile to list the many words used in these various declarations which do not appear to be a part of the present system in England with its "pecuniary and non-pecuniary" approach which is, essentially an assessment of "damages" for which there must be a financial award made.
One essential difference between "reparation" and "compensation" which emerges from these considerations is that reparation can be given to persons who are not the subject of the malfeasance ( or in the present context to the miscarriage of justice) that has been perpetrated.
One reason for such differences lies in the manner in which the ratification of Article 14 (6) of the ICCP was done. By enacting this ratification with a section of the 1988 Criminal Justice Act, a false emphasis was given to the definition of "compensation".
The 1988 Act deals essentially with the workings of the legal system. As a consequence, the word "compensation" has been used as having the meaning of restitution for the mistakes made within the legal and judicial process - perhaps better defined as the fair trial process. There are many elements in miscarriages of justice which may well not come within this definition, nor within areas of evidence acceptable to the Court of Appeal, or even admissible in law in that Court.
Indeed, the entire concept of the Court of Appeal from its creation at the beginning of the last century has been that of a "safety net" to rectify mistakes when they occur. There has never been any element in the Court’s proceedings that might take matters further than that; the court does not conduct investigations into possible perjury, incompetence either by the police or by the lawyers involved in the trial – or any other such malfeasance. That is not a part of the legal system – and must be left to others. The Court thinks it sufficient to quash the verdict – and rarely have Appeal Court Judges even expressed any regret to the victim for the injustice done.
It is from this base that lawyers have taken the concept of "compensation". They are aware of what that means in law; they define it as they do in civil cases – " payment for damages done". They ignore the simple fact that most litigants and plaintiffs in a civil case have not suffered greater social and economic handicaps beyond the facts of the case before the courts.
This "legal" concept has meant that it has become accepted that only the person involved in the case under review is worthy of "compensation". In civil cases, of course, no other person is affected by a court decision on damages. As a consequence of this, no one else who suffers from the wrongful incarceration of an innocent person is ever offered any compensation at all. This may include a wife, children, parents, business partners and indeed many other persons who knew the victim of the miscarriage of justice before it began.
In fact, there is no part of the English legal system which has a duty to protect or defend any persons (other than the accused) adversely affected by proceedings in the courts. Quite the reverse may in fact pertain – judges have been known both in trials and appeals to make adverse comments about individuals involved in the case. Such defamation cannot be objected to and rectified in the normal manner, nor can justification be sought, for members of the judiciary enjoy privilege in their comments. It has even been known for an Appeal Court Judge to quash a verdict whilst continuing to make defamatory remarks about the victim of the miscarriage.
The Court of Appeal clearly considers that its role is not to offer "reparation", but to simply correct a judicial error. And in criminal law, the court does not even have the responsibility, or the power, to offer any form of compensation. The responsibility for such awards lies with a higher power – government. It follows that courtroom definitions do not necessarily apply in the assessment of such awards – and the objective of such an assessment is not confined to the objective of a civil court in assessing damages.
It is for this reason that the word "reparation" is now being used more frequently than "compensation".
A broader view on "compensation", leading to "reparation", may not lie within the duties and responsibilities of the courts, but it is increasingly being interpreted as being the duty of government.
It is the government’s responsibility to "restore" the wronged person into society in a proper manner – and to look beyond the individual. In any miscarriage of justice many individuals, particularly family, are affected by the wrongful conviction – and their lives must also be restored to their proper state as far as is possible. Simple financial awards may not be enough in such cases.
The concept of "reparation" must not simply look back to a past injustice – it must look to the future, attempting to place the victim back into society and heal all wounds.
The current English concept of "compensation" seems to look merely to "pay damages" for a past mistake. It attempts an assessment as in a civil case , in financial terms only.
CONCLUSION
The scope of reparation as well as compensation to victims of miscarriage of justice is, in practice, too narrowly defined to satisfy the United Kingdom’s obligations under International Law.
The prime causes for this oversight are:
As a consequence of these factors, the Assessor has not taken the broader approach that his office has a duty to take under International Law, and which he has the power, in law, to take.
The Assessor needs to consider reparation - the restoring of an individual into his or her former place in society - rather than a simple "pay-off" for the inconvenience caused by the injustice and the violation of human rights caused by a miscarriage of justice.
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