Amongst the distraction of PCT and Save UK Justice campaigning, it is important that as lawyers working to preserve the Rule of Law, we must not take our eye off developments in the law, particularly in what seems an opportune time for the government to perform the legislative equivalent of burying bad news.
We have written several articles now on when compensation will be payable to a person who has been the victim of a miscarriage of justice. Such is its importance, the payment of miscarriage compensation is enshrined in the International Covenant of Civil and Political rights[1], which has 74 signatories and 167 parties. It has been described by Lord Steyn as a fundamental human right[2].
Following the cases of R (Adams) v SSJ [2012] 1 AC 48 and R (Ali) v SSJ [2013] EWHC 72, the test for the payment of compensation has been refined so that a person will be regarded as having been the victim of a miscarriage of justice for the purposes of the statutory scheme[3]where he or she has:
“established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”
The Secretary of State has appealed the decision in Ali, but as in the Abu Qatada case, the government has adopted a twin-track approach to defeating developments in the law.
In addition to is appeal, included in the Anti-Social Behaviour, Crime and Policing Bill is provision to amend the to align it with a variation on the formulation rejected by the Supreme Court in Adams, namely that:
“…there has been a miscarriage of justice…if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence..”
As we have discussed previously, the difficulties inherent in this reverse burden are obvious, and it will only be in extremely rare cases that an individual can meet the inordinately high threshold of proving innocence[4].
The practice of including a mish-mash of provisions in statutes is not a new one, although it has been much-criticised by the courts[5]. In this case the Bill contains items as diverse as dangerous dogs, closure of premises orders, and the remit of the IPCC.
Perhaps inevitably, aspects of the Bill concerning whether a householder can be prosecuted if their dog attacks a burglar (which would fail the CPS public interest test anyway), have been the focus of media attention, rather than this underhand attack on a fundamental human right. As lawyers concerned with civil liberties, we must not allow the prevailing sense of general concern to cause us to lose sight of these attacks.
A failure to oppose this provision will mean that the fundamental human right of those wrongfully convicted to seek compensation will be virtually extinguished.
Do we really as a society want to remove the right of those we wrongfully convict and deprive of their liberty any redress for what has happened to them?
This article first appeared in The Justice Gap on 16th May written by Mark Newby and Matt Stanbury of GCN Chambers
[1] Article 14 (6)
[2] R (Mullen) v SSHD [2004] UKHL 18
[3] Criminal Justice Act, section 133
[4] The lawfulness of the reverse burden is currently awaiting a decision by the ECtHR in Allen v united Kingdom
[5] see, for example, R (Noone) v Governor HMP Drake Hall [2010] WLR 1743 per Lord Judge at para 86