Compensation For Wrongful Conviction And Imprisonment

  • Doug Graham

A new regime to handle claims for compensation from people who have been wrongly convicted and imprisoned has been approved by the Cabinet and will come into effect immediately.

The new regime will replace the interim arrangement put in place last year pending a full examination of the issue by the Law Commission. The report from the Law Commission has now been considered and the Cabinet has made policy decisions on the basis of its recommendations.

The new criteria will broaden the range of people who are able to apply for compensation but will impose a more stringent test of innocence before a claim is approved.

Under the interim criteria, only those who had been pardoned by the Governor General or whose case had been referred by the Governor General to the Court of Appeal and the conviction quashed subsequently could be considered.

Under the new criteria, those eligible to apply for compensation are individuals who have had their convictions quashed on appeal to the High Court or Court of Appeal, without order for retrial, or who have received a free pardon.

Under either the interim or the new criteria, the applicant must have served a period of imprisonment.

Under the interim criteria, claimants had to prove, on the balance of probabilities, that they were innocent, and that a new fact had emerged which demonstrated there had been a miscarriage of justice. The new regime accepts the Law Commission proposal that claimants must establish beyond reasonable doubt that they are innocent but does not require claimants to produce a new fact establishing a miscarriage of justice.

The Minister of Justice Rt Hon D.A.M. Graham said the new regime is designed to shift the focus onto the innocence of the claimant, eliminating the chance that compensation is paid to guilty people who have had their conviction reversed on a technicality.

"The test of innocence is a tough test but I believe that it is essential in order to preserve the integrity of our justice system. What we are aiming for is a system that will vindicate innocent defendants and make good the losses incurred when it is absolutely clear they have been wrongly imprisoned."

The Law Commission's recommendation of an independent tribunal to adjudicate claims has not been adopted, as the costs would be difficult to justify given the small number of claims expected. It is estimated that no more than six people a year would be eligible to apply to have their case considered.

Instead, the assessment process will be conducted by a Queen's Counsel appointed by the Minister of Justice in any case which appears to meet the qualifying criteria.

The Queen's Counsel will first assess whether the claimant is "innocent beyond reasonable doubt". If that test is met, the Queen's Counsel then makes a recommendation to the Minister of Justice on the appropriate level of compensation payment. The final decision on each claim will continue to be made by Cabinet.

The level of compensation will be settled under guidelines, as proposed by the Law Commission, taking into consideration such things as the way the prosecution was handled, the claimant's own conduct and the nature of the pecuniary and non-pecuniary losses suffered by the claimant.

Although the Law Commission recommended that the new criteria be established in statute, it has been decided that the new regime will remain within the Crown prerogative and will be reviewed after three years. This means the new criteria can come into force immediately.

The Minister of Justice will also retain the discretion to consider claims falling outside these criteria, if there are extraordinary circumstances and this is in the interests of justice.

NB: The case of David Dougherty was referred for consideration by a Queen's Counsel before the Cabinet decided to adopt the new criteria. His case, therefore, will continue to be assessed under the interim criteria, which require innocence to be proven on a balance of probabilities. A report from that QC, Stuart Grieve, is not expected before February.