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…………………………………………………………………………………………. RESTORATIVE JUSTICE AND MISCARRIAGES OF JUSTICE. The essential question
that this paper seeks to elucidate is whether a branch of the Executive – in
this case the Home Office - 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 Home
Office 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 Home Office 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 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 Home Office for compensation. The system, and the funding,
for dealing with miscarriages of justice in both the Court of Appeal and the
Home Office 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 Home Office Assessor (
currently Lord Brennan) , assesses compensation for victims of miscarriage of
justice. He is guided by the Home Office 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 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 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 Home Office 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 Home Office 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 Home Office 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 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 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 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 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 Home Office and reports to the House of Commons Select
Committee on Home Affairs as well as to the Home Office. 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)"
"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 Home Office and to reach a judgement which might be binding on that
department of government. There is no Ombudsman overseeing the workings of
the Home Office, 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 Home Office’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 Home
Office 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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