This article seeks to set out that the new test introduced in 2014 to compensate miscarriage of justice victims is not fit for purpose.
The question of whether and, in what circumstances, a person whose conviction has been set aside or who has been pardoned should be so compensated was said by Lord Bingham in Re McFarland  UKHL 17 at 7, to be “a difficult and sensitive one”. This is because of (a) the need to distinguish those who are the innocent victims of mistake or misidentification and those who are fortunate to have escaped their just deserts, (b) the difficulty in some cases of doing so, and (c) the “interaction, in this field, of judicial and executive activity” with the consequent need for each of these two branches of the State to recognise and respect the proper role of the other.
The previous law
Section 133 of the Criminal Justice Act 1988 puts a compensation scheme on statutory footing for those seeking redress against the state for a miscarriage of justice. It states that:
When a person has 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 beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
The key question to this provision has always been in relation to what constitutes a miscarriage of justice. The test prior to the 2014 changes was the result of the 5-4 decision of the Supreme Court in Adams, MacDermott and McCartney  UKSC 18.
Four members of the Supreme Court would have confined ‘miscarriage of justice’ and the scope of Section 133 to cases in which the individual is shown, beyond reasonable doubt, to be innocent of the crime for which he had been convicted. But they were in the minority. Five members of the court held that this interpretation was too narrow. They held that the test for miscarriage of justice in Section 133 of the Act was that a new or newly disclosed fact would show that a miscarriage of justice had occurred when it so undermined the evidence against the defendant that no conviction could possibly be based upon it. That was a matter to which the test of satisfaction beyond reasonable doubt could readily be applied. Section 133 did not impose a requirement to prove innocence.
The 2014 changes
Section 175 of the Anti-Social, Behaviour, Crime and Policing Act 2014 amended Section 133 of the Criminal Justice Act 1988. It redefined the term miscarriage of justice, effectively reversing the Supreme Court Decision in Adams, by inserting the following provision:
There has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.
This requires victims to undertake the often impossible task of proving themselves innocent beyond reasonable doubt. It is argued that, in effect, the victim of the alleged miscarriage of justice would have to take on the roles usually undertaken by police and prosecutors and gather evidence to prove themselves innocent to the high threshold of a criminal law test, for matters which may have occurred sometime ago.
At no stage of the criminal justice process is anyone required to prove their innocence. At trial, the burden is placed on the Crown to show beyond reasonable doubt that the accused is guilty. At appeal, the courts consider whether the prosecution case is sufficiently undermined that the conviction is no longer safe. It’s rarely feasible for wrongly convicted persons to uncover evidence which shows conclusively they couldn’t possibly have committed the offence.
When the changes were being debated Baroness Helena Kennedy called the change ‘an affront to our system of law’. Sadiq Khan, the shadow Justice Secretary stated, ‘when people have wasted long periods of their life in jail for crimes they didn’t commit, the least society can do is provide some compensation. This government was warned the changes would place too great a burden on the victim to prove their innocence, even after they’d been freed from jail. It’s a mark of a civilised country that when mistakes of such a serious nature like this are made, the Government should pay compensation to make up for the error. The rules require review urgently’.
Furthermore, Jodie Blackstock, Director of Criminal and EU Policy, at the human rights group Justice said that the 2014 legislation was deeply concerning. She propounded that, ‘in our view the change in law offends the right to the presumption of innocence and makes an award of compensation almost impossible to achieve’.
In yet another area which shows the Justice Secretary, Chris Grayling, to be more appropriately suited to the role of Injustice Secretary, it is submitted that the new test to compensate victims of miscarriage of justice cases is not fit for purpose. The new test sets an unreasonably high threshold to cross in order for victims to obtain compensation and therefore acts as an effective barrier to any claim. As Section 133 of the Criminal Justice Act 1988 gives effect in domestic law to the United Kingdom’s obligations under art 14(6) of the International Covenant on Civil and Political Rights 1966 (ICCPR) to provide a right to compensation to those whose convictions for a criminal offence have been reversed, or who have been pardoned on the ground that a new or newly discovered fact shows that there has been a miscarriage of justice, it is further submitted that as the new test effectively serves as a barrier to any redress, the result is that the United Kingdom is effectively unable to comply with its obligations under the ICCPR. If the test for a miscarriage of justice is set unreasonably high so that nobody can ever satisfy it, how can the provisions of the ICCPR be complied with when they require a right to compensation to be provided for?
LLB (Hons) Student & Aspiring Barrister
 R (Ali and others) v Secretary of State for Justice  EWHC 72 Admin, para 2.