Sunday, 4 January 2015

Won Your Appeal? … No Compensation!

There comes a time when even the names of some of our public bodies are so inappropriate as to be verging on the ridiculous. George Orwell, in his dystopian novel Nineteen Eighty-Four, spotted this trend long ago. 

"Freedom is Slavery"
Recognising perceptively that powerful, authoritarian organisations have a tendency to conceal their real objectives behind euphemistic titles, Orwell dubbed the oppressive interior ministry apparatus that crushed all dissent through treachery, torture and execution – and was home to the infamous Room 101 – the Ministry of Love (or the ‘MiniLuv’, as it was known in Newspeak). I wonder what George would have made of our so-called Ministry of Justice (MOJ) – or perhaps we could start calling it the ‘MiniJust’. It might even catch on.

One of the latest – and arguably most unjust – cost-cutting measures being imposed by the MOJ is to deny any compensation to practically all ex-prisoners whose convictions have been quashed by the Court of Appeal. Victims of serious miscarriages of justice are now starting to discover that no matter how many years they may have served of undeserved prison sentences for crimes they didn’t commit, the likelihood is that they will leave jail without the prospect of a penny piece to compensate them for their ruined lives and lost years of freedom, let alone for their lost homes, families, jobs, reputation and income.

The 'MiniJust': never makes mistakes
Sadly, miscarriages of justice are nothing new in the UK. However, at least in the past when a prisoner had his or her conviction quashed by the Court of Appeal – usually after new evidence had come to light or official wrongdoing exposed – the state accepted that a reasonable level of financial compensation, paid to the victim from public funds, would be appropriate to mark the years of unjust incarceration, as well as the very real material losses that wrongful convictions can often involve.

Back in 1992 Stefan Kiszko had his conviction quashed for the sexually-motivated murder of 11-year old Lesley Moleseed after forensic medical evidence – which had been withheld from the defence at the time of his trial in 1976 – conclusively proved he could not have been the killer. Having already served 16 years inside being mistreated to the point he became so mentally ill that it had been recommended he be transferred to Broadmoor or another secure psychiatric hospital, Mr Kiszko was released. The real murderer, Ronald Crastree, would not be apprehended until 2006, during which time he had reoffended – a very important reminder of why miscarriages of justice should matter to everyone.

Stefan Kiszko: 16 years
By any measure, the Kiszko case was a shocking wrongful conviction, from which no-one – with the possible exception of Mr Kiszko’s elderly mother who had been a lone voice campaigning on her son’s behalf for many years – really emerged with any credit. In recognition of the years he had spent in prison, he was awarded £500,000. He actually received very little of this money since he died in 1994 before the main payment had even been made to him. Presumably, the Treasury pocketed the remaining compensation.

If the Kiszko case had occurred these days, however, it’s unlikely that Mr Kiszko would have received a penny for the 16 long years he’d spent banged-up in appalling conditions – at least not on Chris Grayling’s watch. Even when the Court of Appeal (or the Supreme Court) has quashed a conviction, it is left up to the Secretary of State, sitting somewhere on the upper floors of the ‘MiniJust’, to decide whether the victim of a miscarriage of justice is deserving of any compensation under the Criminal Justice Act (1988). It seems that as things stand, unless an alternative perpetrator has been convicted, or has confessed to the crime, the ex-prisoner who has been freed from prison won’t be getting a cent, regardless of how long they may have served in the nick.

Birmingham Six: released in 1991
The Birmingham Six – released from life sentences after their convictions had been quashed in 1991 – each received compensation payments ranging from £840,000 to £1.2 million, although they were still made to wait until 2001 before they got the cash. Again, had such a miscarriage occurred today, it is unlikely that these men would have received any financial recompense for their terrible ordeal, neither in all likelihood would the Guildford Four or any of the other victims of serious miscarriages of justice from the 1970s through to the 1990s.

In part, this is due to the last Labour government’s decision back in 2006 to scrap ex gratia payments to victims of miscarriages of justice. Last year the new Antisocial Behaviour, Crime and Policing Act made it even less likely that any compensation will be paid to those whose convictions have been quashed by the higher courts. The current test is that victims of wrongful convictions have to show “beyond reasonable doubt” that they are factually innocent – a very high bar for almost anyone to reach unless someone else has been convicted of the same offence, which can be very unlikely particularly years after the original police investigation and trial. 

The practical results of this policy can be seen in a recent notorious miscarriage of justice case – that of former postman Victor Nealon who served 17 years in prison after having been convicted of the rape of a 17-year old girl in 1996. Although he was given life with a minimum tariff of seven years by the judge, he served an extra decade on top precisely because he always maintained his innocence of the rape and therefore stood little or no chance of convincing the Parole Board he should be released on licence.

His ordeal ended in December 2013 with the quashing of his conviction when new DNA evidence suggested that another man had been responsible for the attack – an unknown perpetrator whose DNA is not in the police database. Despite last ditch efforts by the Crown Prosecution Service (CPS), which had steadfastly rejected the new evidence as being capable of exonerating Mr Nealon, the Court of Appeal did quash his conviction as being unsafe. 

Victor Nealon: freed in 2013 
Mr Nealon was released from prison having lost pretty much everything: his partner had left him and following the deaths of members of his family he was homeless. On leaving HMP Wakefield in December 2013 he was given the standard £46 discharge grant and ended up on the streets until he was put up in a B&B by supporters. 

Unsurprisingly, there was an expectation that he would receive compensation for the 17 years he’d served in prison. However, not on Chris Grayling’s watch at the ‘MiniJust’. Mr Nealon would probably have stood more chance of getting unscathed out of Orwell’s infamous Room 101.

When he decided to pursue the matter through the courts, he was again turned down in June 2014 and – in a typically Graylingesque move – the MOJ is now trying to wring £2,500 from the penniless Mr Nealon to cover its costs from his failed bid for compensation. Nice, Chris, very neatly done.

I believe that the current MOJ position is purely ideological. In effect, the message seems to be that the criminal justice system never really gets it wrong and that anyone convicted by a jury deserves to go down, even if later evidence rather inconveniently casts doubt on that conviction. 

Big Brother is Watching You!
The worrying subtext is that even when a conviction does get quashed by the Court of Appeal, it is probably just a ‘technicality’ and the ex-prisoner has somehow managed to evade justice by getting early release from their sentence. Such individuals are therefore considered by the MOJ to be totally undeserving of any compensation in respect of their years spent in jail, even when they have been inside for decades longer than any minimum tariff only because they have steadfastly maintained their innocence.

Under the present rules, it’s very doubtful that any of the headline cases of wrongful convictions during the past 30 years would have received anything at all, even in those cases where their ‘confessions’ had been beaten out of them or where vital evidence supporting their innocence had been unlawfully withheld from the defence by police and prosecutors. ‘British Justice’? Where is George Orwell when you most need him? 

And "Innocent is Guilty"
In addition, as a final insult even in those rare cases where compensation is paid grudgingly by the MOJ, there is also a deduction from the final amount which is charged for ‘board and lodging’ for the entire period when the ex-prisoner was an unwilling ‘guest’ of Her Majesty. In effect, any victim of a miscarriage of justice is made to pay for his or her hard prison cell bed, lukewarm water and grim jail food. In the present climate it can only be a matter of time before anyone whose conviction is quashed will be pursued to the ends of the earth for the costs of their own undeserved time in the slammer. Welcome to British justice – ‘MiniJust’ style. 

Perhaps we should always remember that in Chris Grayling’s brave new world, “Innocent is Guilty”, just as “Freedom is Slavery”... Fancy a stay in Cell 101, anyone?


  1. It's a funny coincidence(?) that the Police non-emergency telephone number is 101.

    1. Thanks for your observation... I hadn't spotted that!

  2. It's absolutely disgusting. We cannot do this to innocent people it's criminal. Vas

    1. Hi Vas, sadly this is what is definitely happening at the moment. It seems that most of the general public either don't know or don't really care.

  3. What really needs to happen is that the lovely Mr Grayling gets fitted up for some crime he didn't commit such as molesting children, convicted and thrown in jail. he then spends decades trying to clear his name, only to get his conviction over turned on a technicality and denied and and all compensation. Perhaps then Grayling will realise that what goes around usually comes back to bite you in the butt. Unfortunately unless something like this actually happens to Grayling and all the other numpties in the MoJ I doubt things will change.

    Justice does not exist in the UK any more, if it ever did. There are far too many crooked cops and customs officials bringing bogus charges and faking the evidence to make them stick. There are far too many corrupt barristers and solicitors who bleat on about overwhelming evidence against you to blackmail you into a guilty plea so they don't get made to look stupid in court where their incompetence would have a light shone on it. There are far too many judges who fail to be impartial and who make dodgy rulings. Until all of these people get evicted from the system miscarriages of justice will continue.

    1. Thanks for your comments. While I do understand the sentiment, I honestly wouldn't wish a miscarriage of justice on my very worst enemy (even Mr G). It is utterly soul-destroying and, unless a person has a very strong character, it can eat them up and make them incredibly negative and bitter. I think that the genuinely guilty (even if they claim innocence) can accept punishment, but the factually innocent are often completely broken by their ordeal - as Stefan Kiszko was.

      I actually believe that most jurors do try to do their best to deliver justice in court. However, they can only consider evidence called during the trial. One of the major problems in many miscarriage of justice cases is that crucial evidence is being withheld from the defence - and the jury. It was fascinating to see the reaction of a former juror who was involved in the trial of ex-nurse Colin Norris when shown new evidence of his possible innocence in a recent episode of BBC Panorama.

      British trials are basically legal theatricals (including 18th century fancy dress costumes for the main players: the barristers and the judge). The result is sometimes determined by which barrister is the more effective performer on the day, as well as how the jury perceives the defendant(s) in the dock. In some cases, when the defendant is seen as being a bit of a misfit (Mr Kiszko had learning difficulties, as did Barry George whose conviction for murdering Jill Dando has also been quashed without any compensation being awarded), there may be more of a tendency to convict "just to be on the safe side", even if the prosecution case is weak.

      As you quite rightly highlight, there is also an increasing risk of defendants being pressured by their own legal team to plead guilty even when they wish to maintain their innocence. The law is highly technical and most ordinary folk just feel that they can't argue with 'their' solicitor and barrister - who must 'know best'. I know a number of serving prisoners who caved in to such pressure and are now facing years in jail for crimes they may not even have committed. Shocking, but true.

    2. My case was very similar to the last paragraph of your reply.

      I was convinced I had done nothing wrong and my actions were entirely legal. My defence team consisted of a solicitor, barrister and a QC. Of course, the QC ruled the roost and the others followed his advice. His advice to me was to plead guilty as there was no legal defence but if I decided not plead to he would defend me in a (approx 6 week) trial.

      Me being a legal layman in a world of weirdness I really didn't properly understand I took his advice. Who am I to question a QC's advice?

      In Court on a Thursday I took his advice - with less than 3 minutes before reaching the dock - and duly pleaded guilty to an offence I was sure I didn't commit.

      It was a few months later I learned that my QC was due to start work as a Judge the following Monday - as he did. To this day I still don't know, and never will, whether the advice he gave me was in my best interests or his.

    3. Thanks for sharing your own experiences of court with us. The reality is that the law has now become so complex - especially with regard to some financial issues, with conspiracy charges and 'joint enterprise' rules - that it is simply unrealistic to expect defendants (some of whom are functionally illiterate) to understand the law, which in England and Wales is constantly evolving due to precedents set by the higher courts and almost daily legislating by Parliament.

      Some might argue that this vast 'professionalisation' of the law is so discriminatory against defendants and appellants who have learning difficulties - as well as many 'ordinary folk' who haven't have the luxury of further or higher education - that it no longer serves the interests of the majority in this country. There are genuine cases where people have been charged with technical offences that have criminalised actions that most lay people wouldn't even regard as crimes.

      I have been very fortunate that my legal team has always been absolutely convinced of my innocence and we wouldn't have even entertained the idea of any so-called 'plea bargain' or other deal. However - as in your own case described above - many others are persuaded to plead guilty on the advice of their solicitor or barrister.

      In one absolutely scandalous case of a prisoner still serving an Indeterminate Sentence for Public Protection (IPP), his barrister bullied him into pleading guilty because the judge in the case wanted a quick disposal so he could go on holiday as planned. The barrister warned him that the judge was "getting angry" with him (the defendant) and told him that he would definitely get a much harsher sentence if he didn't make a decision immediately.

      This pressure was then backed-up by the clerk of the court coming down to the cells and informing the guy's barrister - in front of his client - that the judge was losing his temper over the refusal to go guilty. Faced with such bullying he finally buckled and pleaded guilty to an offence he maintains he didn't commit. He was given an IPP with a minimum term of six years and is still in prison nine years later (the equivalent of an 18-year fixed term sentence). So much for a defendant's right to enter a plea of their choice! Oh, and he was a young black man.

  4. It's enough to make me think that if I were called to jury duty (I won't as I'm not a British national) I would have to decline to find anyone guilty. Perhaps if enough people refused to convict on the basis that the system is unsafe, they'd have to take notice? Or would there be wholesale prosecutions for contempt of court?

    1. Interesting point. As the jury in the case of the 'High Down 11' demonstrated, they can - and do - sometimes return what are called either 'nullifications' or 'perverse verdicts' by acquitting regardless of the actual evidence when they feel that an injustice is being done, or the prosecution has been essentially malicious - or politically motivated.

      English law does not allow for members of juries to be prosecuted for returning whatever verdict they wish to. There is some old case law on this, although I forget the citation. Jurors can only be prosecuted for ignoring judges' directions on not researching cases on the internet during trials or revealing the details of what went on in the jury room.

      Of course, it's also worth noting that sometimes a conviction is entirely justified. I'd not want to acquit in cases where there was compelling evidence of guilt, particularly where there is a real risk of further offences taking place, so I still do have some faith in the jury system.