Saturday, 2 May 2015

Compensation for a Miscarriage of Justice: Not Innocent Enough?

I wanted to write something about an issue that is causing me and many others concern regarding the paying of compensation to those who have suffered a miscarriage of justice. This is one of those subjects that seems to be reported in the media in a way that can be so easily misunderstood, certainly by me.

I couldn’t understand that if someone was freed on appeal, and therefore proven innocent, he or she could be deemed ‘not innocent enough’ to be granted compensation for having suffered a miscarriage of justice. Such a pronouncement by the State seemed quite odd to me.

How could one court hand down a judgement ‘that a person was innocent’ one week, and another court would then make the decision that they were not entitled to compensation the following week. It is drawing the conclusion that the individual who had been cleared was not sufficiently innocent to deserve compensation. The Judges appear to have gone quite mad by giving incomprehensible and seemingly incongruous rulings in such cases. Often the reasons given by the Ministry of Justice are that no one else has been convicted of the crime that the person was wrongly convicted of or that the person cannot prove their innocence sufficiently. Surely being proven ‘not guilty’ means innocent? It does to any reasonable person, as it does to me, but it doesn’t mean that to the Ministry of Justice.

The compensation claims of Victor Nealon and Barry George are two important cases that spring to mind. There are no doubts that both of these men did not and could not have committed the crimes they were wrongly convicted of and both were rightly freed by the Court of Appeal. They were 100% innocent of the offences they had spent years in jail for and they should have been compensated by the State for having suffered so long in jail. The system got it wrong so the system should give them money to help make amends. Nevertheless both Nealon and George have previous convictions and have served terms of imprisonment for offences other than those they were wrongly convicted of.  This, it would appear, makes a difference to them receiving compensation, but should it?

Regardless of their previous convictions, I couldn’t understand how someone ‘could not be innocent enough,’ so I did some research to understand how this principle might be applied informally across all parts of the justice system.  I took a look at the rules of compensation more widely within the Ministry of Justice guidelines. There are clear and concise rules about giving compensation to anyone with previous convictions where they have served a term of imprisonment.

The current position with regard to compensation for a miscarriage of justice, would appear to have its roots in a change of the rules that took place about fifteen years ago regarding how the Criminal Injuries Compensation Board (C.I.C.B) paid out compensation. This organisation was set up in 1964 to oversee and regularize payments to all victims of crime where they had suffered personal injury or some loss or hardship. For instance, if a citizen had their arm broken during a robbery they would receive a set amount of money from the C.I.C.B.

This led to The Ministry of Justice being heavily criticized in the media because prisoners were also able to receive pay-outs for injuries inflicted upon them whilst they were serving a term of imprisonment. An example might be where someone could have been attacked and injured by another prisoner, they would have received an automatic pay out from the Criminal Injuries Compensation. The media was outraged that criminals should be given money in the same way that members of the public were given money for their injuries. The knee jerk reaction by the State to this media frenzy was to rule that there would be no more compensation for any injuries suffered by a serving prisoner who had been a victim of a crime whilst serving a term of imprisonment .[1]

“3. An award will not be made to an applicant who on the date of their application has a conviction for an offence which resulted in: (a) a sentence excluded from rehabilitation; (b) a custodial sentence; (c) a sentence of service detention; (d) removal from Her Majesty’s service; (e) a community order; (f) a youth rehabilitation order; or (g) a sentence equivalent to a sentence under sub-paragraphs (a) to (f) imposed under the law of Northern Ireland or a member State of the European Union, or such a sentence properly imposed in a country outside the European Union.”

I know this because in May 2004, a prisoner attacked me attempting to slash my throat in an unprovoked and random attack. I needed twenty-eight stitches to sew up the wound in the back and side of my neck. The C.I.C.B. refused my application for compensation, in effect stating that it was my own fault for being in jail with violent prisoners. As I was serving a term of imprisonment I was barred from receiving compensation for the injury I sustained. The fact that I shouldn’t have been in prison in the first place was ignored by the CICB. The media were happy that prisoners were barred from compensation and the public seemingly satisfied that prisoners deserved to be scalded, slashed, stabbed and harmed because they were in prison, with their attitude being it’s their fault they are in there so it’s right that they  won’t be given any compensation from the C.I.C.B. I believe this to be wrong. A prisoner who suffers a loss because of another’s criminal act should be properly compensated.

Going back to the issue of compensation for miscarriages of justice, I am speculating that the Ministry of Justice has simply and informally harmonized their rules regarding compensation for prisoners and ex-prisoners. So by analogy, the State would appear to have decided that anyone who has served a term of imprisonment should be barred from receiving compensation for a miscarriage of justice. This might explain how it is that the State has evaded paying out compensation to these latest miscarriages of justice cases.  It suggests to me that what the police and prosecuting authorities have done in pursuing someone for a certain crime was justified because they had already been convicted of a crime before. It would appear to be the case that the statutory compensation system for criminal injuries and for miscarriages of justice are now administered using the same rules. If you have served a term of imprisonment then statutory compensation for a miscarriage of justice is not automatic. It is not barred completely but any claim has to be justified.  Analogously then, both Victor Nealon and Barry George were unable to justify compensation for their miscarriage of justice because of their previous convictions.

To be labelled ‘not innocent enough’ when being denied compensation for a miscarriage of justice is, it would seem, the way the courts justify these wrongful imprisonments. Not paying compensation for a miscarriage of justice is a human rights issue but sadly the media appear to demonize people previously convicted of crime who in their eyes deserve little sympathy even when released from wrongful imprisonment.

I know there will always be hard cases that cause concern where someone with a previous conviction is given compensation for an overturned conviction, but in the cases of Barry George and Victor Nealon they should be compensated for the miscarriage of justice they suffered, just as any victims of crime should be compensated for any loss they suffered.  

Just because a person is in prison, or has served a term of imprisonment, it should not mean they are forever marginalised and excluded from any benefits available to the rest of society. A conviction should not automatically demonise that person for life so that, in effect, their punishment is never ending. A miscarriage of justice is wrong, and compensation should always be paid by the State when it caused the wrongful conviction by prosecuting a person when they should not have done.


[1] Ministry of Justice. The Criminal Injuries Compensation Scheme 2012 (See link) at Page 41.

Jeremy Bamber

Jeremy Bamber
Innocent Jeremy Bamber