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This may not be a post directly related to information rights (although it does involve disclosure of information in response to a parliamentary question – which is a potential route to access to information which should never be underestimated). But I’m writing more because it’s on a topic of considerable public interest, and because the efforts and the campaigning of the applicants, and of Appeal, deserve support.

The Grand Chamber of the European Court of Human Rights (ECtHR) has held that the scheme in England and Wales for assessing whether people whose criminal convictions are subsequently overturned is compatible with the European Convention on Human Rights (the “Convention”).

Regardless of whether the ECtHR was correct or not, the underlying issue is, in my view, a national scandal and one that any incoming government should set right as a matter of priority.

Under Section 133(1ZA) of the Criminal Justice Act 1988 (as amended in 2018) the state must pay compensation where a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. But a miscarriage of justice will only have occurred “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”. This reverses what would be the normal burden of proof in criminal justice matters, and in effect requires the wrongfully convicted person to prove their innocence to gain compensation, despite the fact that their conviction has been overturned.

Figures given in response to a parliamentary question last year revealed that an extraordinary 93% of cases did not warrant compensation under the scheme. 

At the ECtHR, the applicants contended that the domestic scheme infringed Article 6(2) of the Convention, which provides that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. Although the ECtHR noted “the potentially devastating impact of a wrongful conviction” it also held that the UK was

free to decide how “miscarriage of justice” should be defined for these purposes, and to thereby draw a legitimate policy line as to who out of the wider class of people who had had their convictions quashed on appeal should be eligible for compensation…, so long as the policy line was not drawn in such a way that the refusal of compensation in and of itself imputed criminal guilt to an unsuccessful applicant

It was not, said the ECtHR, its role “to determine how States should translate into material terms the moral obligation they may owe to persons who have been wrongfully convicted”.

Although there was a strong dissenting opinion which would have held that the compensation scheme resulted in a violation of the presumption of innocence, it must now fall to the next Parliament to take forward the “moral obligation” and put right where a previous Parliament went wrong. This does not, and should not, need to wait for the outcome of the Malkinson Inquiry. That inquiry may well have things to find out, and things to say, in general, about miscarriages of justice but it is not in its remit to consider the compensation point: that can, and should, be resolved sooner.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.