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Vincent & Michael Hickey’s Solicitor Welcomes The Government Announcement On “Saved Living Expenses” Deductions For Miscarriage Of Justice Victims, But It Doesn’t Go Far Enough

Following the acquittal of Andrew Malkinson and the subsequent Government announcement, Susie Labinjoh, Head of Civil Liberties, at Hodge Jones & Allen recalls the devastation experienced by her clients in 2007 when the House of Lords rejected an appeal to stop the deduction of “saved living expenses” from the award of compensation for miscarriage of justice of two men who had spent 18 years in jail for a murder they did not commit.

As I said in 2007, “To deduct saved living expenses from [a miscarriage of justice victim’s] compensation offends against justice.” At that time, we had all hoped their lordships would right this wrong. It has taken further 16 years to make it right but this is only for current and future victims of miscarriage of justice. Now, we need to see the Government go further and make this ruling retrospective so that the victims of miscarriages of justice who were subject to the “saved living expenses” deduction are reimbursed.”

Having said that whilst “saved living expenses” is an important issue in the amount of compensation awarded, my primary concern is that the majority of victims of miscarriage of justice are unlikely to receive any compensation at all for all that they have endured. The scheme for compensation’s criteria have been narrowed over the years, with eligibility for compensation being significantly eroded.

The current scheme

There is a statutory scheme for compensation for miscarriage of justice governed by Section 133 of the Criminal Justice Act 1988. However, it may come as a surprise to learn that someone who is convicted of a crime they did not commit, and is then acquitted based on evidence which comes to light years later, will in all likelihood receive no compensation at all. Since the abolition of the ex-gratia scheme in 2006, successive governments have narrowed the eligibility criteria significantly leaving very few victims eligible for compensation.

There are very specific conditions which an applicant has to fulfil to be eligible for the statutory scheme. Firstly, an applicant has to have had their conviction reversed on an out of time appeal or have been granted a free pardon and secondly, the conviction has to have been reversed on the basis of a new or newly discovered fact which shows beyond reasonable doubt that there has been a miscarriage of justice, unless the non-disclosure of the unknown fact was wholly or partially attributable to the person convicted. The applicant does not have to have spent time in prison to be eligible.

The main problem this presents is how do you show that there has been a miscarriage of justice beyond all reasonable doubt? The term “miscarriage of justice” was defined in Section 175 of the Antisocial Behaviour Crime & Policing Act 2014. This Act states that there will have been a miscarriage of justice “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”.

Essentially this means that the applicant must conclusively show their innocence in order to be entitled to compensation.

There are numerous difficulties with the current eligibility test but the two most significant are that:

  1.  The Court of Appeal does not make findings of innocence or guilt, it’s function is simply to decide on the safety of convictions, so how does an applicant who does not have the resources of the state begin to show that they did not commit the offence beyond all reasonable doubt?
  2. It leaves very few cases which are eligible for compensation, only those rare cases where DNA evidence proves that someone else committed the crime or an alleged victim admits to fabricating his or her account of the offence, or the real perpetrator confesses.

It should be noted that even in DNA cases which fulfil the other conditions, the Justice Secretary can still refuse compensation. In Victor Nealon’s case compensation was refused on the basis that the DNA which was found on the victim’s clothes, which did not match his, could have been unrelated to the crime and it was possible that the attacker’s DNA was not left on the victim!

This definition of miscarriage of justice was challenged by Victor Nealon and Sam Hallam, two more victims of miscarriage of justice, on two bases: irrationality and that the test is incompatible with the Human Rights Act. They lost at the Supreme Court but they lodged a challenge at the European Court of Human Rights in March 2021 with Justice as an intervenor. The Grand Chamber heard the case in July 2023 and judgment is eagerly awaited.

Vincent and Michael Hickey’s case was the first to challenge the “saved living expenses” deduction, HJA argued that it was wrong in principle to charge what was, in effect, board and lodging during their unjustified incarceration. But, by a four-one majority the House of Lord ruled against them. The dissenting judge, Lord Rodger, likened the men’s incarceration to a “prolonged kidnapping”.

There was no appeal against the country’s highest court, and the European Court of Human Rights declined to hear the case at that time.

Susie Labinjoh is a leading civil liberties and human rights solicitor and a leading lawyer dealing with compensation claims for miscarriages of justice under s133 of the Criminal Justice Act having represented M25 Three and Bridgwater Four clients.

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