Speeches and Statements
Compensation for Miscarriages of Justice
Written ministerial statement by Charles Clarke, the Home Secretary, on 19 April 2006.
I have decided reform is needed to the arrangements under which state compensation is paid for miscarriages of justice.
The purpose of the reforms which include some important changes being made by the Assessor, with my full support, is to modernise and simplify the system, and to bring about a better balance with the treatment of victims of crime. In summary with, immediate effect:
I will not consider any new applications under the discretionary scheme for compensation;
I will introduce time limits for all applications;
the Assessor will assess compensation in respect of applicants’ legal costs by reference to the level of fees paid for Legal Help pursuant to the Community Legal Service (Funding) Order 2000;
the Assessor will take greater account of applicants’ convictions when deciding the level of awards for non-pecuniary loss;
the Assessor will take greater account of conduct by applicants which contributed to the circumstances leading to the miscarriage of justice.
I shall when suitable legislative opportunity arises, bring forward legislation to:
enable the Assessor to make deductions from the pecuniary element of the award because of criminal convictions of the applicant;
provide for an upper limit on the overall amount of compensation and as regards compensation for loss of earnings;
enable the Assessor to reduce an award of compensation to zero, in exceptional cases, on account of criminal convictions and/or contributory conduct of the applicant.
A single scheme
Currently I pay compensation under two schemes: a statutory scheme under section 133 of the Criminal Justice Act 1988 and a discretionary scheme which operates on the basis of the statement made by the then Home Secretary to the House of Commons on 29th November 1985.
The existence of the second, discretionary scheme is confusing and anomalous. The scheme predates the introduction of international standards and agreements in this area and addresses cases beyond the UK’s international obligations. The scheme currently costs over £2m a year to operate but benefits only between five and ten applicants. I do not believe that the discretionary scheme can continue to be justified.
Applications for compensation already received by the Office for Criminal Justice Reform will continue to be considered both under section 133 and the discretionary scheme. However, with immediate effect I will entertain new applications for compensation only under the statutory scheme.
Other immediate changes
Claims for compensation have increased in complexity in recent years and may drag on for several years. This reflects the absence of time limits on the process, as would be expected if the case had come to court, lack of clarity about the maximum amounts payable, and the absence of limits on legal fees, which are reimbursed at private work rates. Currently, applicants are invited simply to submit their claims for compensation and to detail their financial loss. Compensation payments for miscarriages of justice have increased sharply over the last few years and are now running at an average of well over £250,000, with more than ten per cent of that amount also paid in legal fees. In contrast, no legal costs are payable under the scheme for victims of crime, and the average amount received by each victim is less than one fiftieth of what is paid to those eligible under the miscarriages of justice scheme.
The level of compensation to be awarded to those eligible for compensation is determined by an independent Assessor.
The Assessor already takes some account of criminal convictions when deciding on the amount of compensation for non-pecuniary loss, and in assessing the amount of compensation he is able to take account of conduct by the applicant which contributed to the circumstances leading to the wrongful conviction. Typically, such deductions have been modest, ranging in most cases from around five to no more than twenty per cent. In contrast, reductions in payments to victims of crime are much higher, ranging up to 100% in serious cases.
The Assessor has decided that, with immediate effect, he will take greater account of the criminal convictions of applicants when determining the level of non pecuniary compensation to be awarded. He will also, with immediate effect, take greater account of conduct by the applicant which contributed to the circumstances leading to the miscarriage of justice. These changes will apply to all existing cases (both under the statutory and discretionary scheme) which are currently awaiting a decision from the Assessor on the amount of compensation, as well as to all existing cases (both under the statutory and discretionary scheme) where the question of eligibility for compensation is being considered by the Office for Criminal Justice Reform, and to all new cases for compensation under the statutory scheme received by the Office for Criminal Justice Reform.
The Assessor has also decided that legal costs in relation to applications for compensation will, with immediate effect, be paid by reference to the fees for publicly funded civil cases as provided for in the Legal Help contained in the Community Legal Service (Funding) Order 2000. This change will apply to all existing cases (both under the statutory and discretionary scheme) which are currently awaiting a decision from the Assessor on the amount of compensation, as well as to all existing cases (both under the statutory and discretionary scheme) where the question of eligibility for compensation is being considered by the Office for Criminal Justice Reform, and to all new cases for compensation under the statutory scheme received by the Office for Criminal Justice Reform. However, in the case of applications already received by the Office for Criminal Justice Reform or already under consideration by the Assessor, the change will apply only in relation to legal costs incurred after today and compensation in respect of legal costs before today will be paid on the same basis as before.
I am also asking all those dealing with applications for compensation, including my officials, to deal with them much more quickly than has been the case in the past. I propose that all supporting details of the amount of compensation being sought should be with the Assessor within six months of notification of eligibility, and I welcome the Assessor’s decision to make final assessments within twelve months on the basis of the information to hand. I believe that the clarifications and simplifications introduced should enable that target to be met.
Currently, section 133 of the Criminal Justice Act 1988 limits deductions from compensation awards in respect of convictions to the amount awarded to the applicant for non-pecuniary loss. I intend to bring forward legislation as soon as a suitable opportunity arises to empower the Assessor in appropriate cases to make deductions because of convictions from the whole of the award – including pecuniary loss - and to provide that in exceptional cases the amount of compensation may be reduced to nil because of criminal convictions and/or contributory conduct by the applicant.
I also intend to bring forward legislation to provide that the maximum amount of compensation payable under the statutory scheme should be £500,000 and that the maximum compensation payable in respect of loss of earnings should be one and a half times the gross average industrial earnings.
Finally, I have embarked on an urgent review, with the Lord Chancellor and Attorney General, of the statutory test the Court of Appeal must use in deciding whether to quash a conviction. I propose to examine whether and if so to what extent an error in the trial process necessarily means a miscarriage of justice. I will consult upon the results of this review as soon as possible. If a change in the law is needed, we will propose it.
My right honourable Friend, the Secretary of State for Northern Ireland, has also decided, with immediate effect, not to consider any new applications under the discretionary compensation scheme in Northern Ireland. He also intends to have the legislation I will bring forward on compensation extended to Northern Ireland.
He is now raising with assessors in Northern Ireland the other changes for the treatment of claims by Lord Brennan. In association with my own review, the Secretary of State for Northern Ireland will also consider the need for changes to the test for the quashing of convictions by the Court of Appeal in Northern Ireland.