TO GUARANTEE A citizen a fair trial, the criminal justice system confers on the convicted person a right of appeal.

If, at the conclusion of the appeal, the conviction is set aside and an acquittal is substituted, what follows? If there is finality in the criminal process, the case cannot be reopened, save only by an extrajudicial process.

The Criminal Appeal Act 1995 accepted a judicial view that the two grounds of appeal, ‘unsafe’ and ‘unsatisfactory’, could conveni­ently be expressed under the single element, that the conviction was ‘unsafe’. By coalescing the two concepts, the law obscured dis­tinction between the case of the truly innocent person from that of the person acquitted on technical or procedural grounds. The CCRC was thereby injected into the criminal justice system, and there was no scope for any finding that says that the criminal justice system miscarried. It poses the question: is there a ‘real possibility’ that the claimant would have been acquitted? That the two issues are inter­twined is exemplified by a recent case.

claim for compensation, separately assessed. To put it specifically, can the Government refuse to compensate someone for a miscar­riage of justice as a violation of the claim of legal innocence, or, going further, must the person establish his factual innocence? Alternatively, should the task of determining compensation be given, even if only advisorily, to the CCRC? That depends on the assessment of the CCRC in its work over the last two decades. The conclusion by Sir Robin Auld in his Review of the Criminal Courts in 2001¹ was that the general tenor of opinion was that its function­ing was a success. There is nothing to qualify that sound beginning.

The distinction to be drawn between the acquittal of criminal liability by the courts and the decision as to compensation must be either that acquittal is on the merits, or that it relates to some func­tion of the criminal procedure, irrespective of merit. The latter test must apply if, on policy terms, the administrator of criminal justice has caused the acquittal. Only an acquittal on fresh evidence (if dif­fering from that adduced at trial) should be treated differently.

Compensation to those alleging punishment as a result of the investigation of criminality is a matter of government response for anything that it does in public law. Its obligation to provide com­pensation for the administration of criminal justice stems from sec­tion 133 of the Criminal Justice Act 1988, which complied with international obligations. That it enacted a limited role in Article 6 of the European Convention on Human Rights (according a fair trial) is exemplified by the failure of the UK to sign or accede to Protocol No 7 of the European Convention on Human Rights, which is replicated in Article 133. The UK has no need to compensate a person who has suffered punishment as a result of a criminal con­viction.

Is there any scope left for extending the complaint to matters beyond the purview of the CCRC? The dilemma is complicated by the insertion of compensation ‘for the miscarriage of justice’, which divided the nine-judge Supreme Court of the UK (by five to four) in Re Adams.^{[147] [148] The majority’s finding was that there remains unre­solved the question of what may or may not be provided in civil compensation arising from the same facts that gave rise to the crim­inal prosecution and investigation.}

Following the decision of the Supreme Court in Adams on the ambit of ‘miscarriage of justice’ in section 133, the Government objected to the test at common law, whether it had been established beyond reasonable doubt that no reasonable jury would have con­sidered awarding compensation. The ostensible reason was that the test would allow a claim for compensation to be brought by the per­son whose conviction had been quashed on appeal because of some failure or fault in the handling of the prosecution. When the Anti­Social Behaviour, Crime and Policing Bill was produced, a miscar­riage of justice was defined as a case where a new, or newly discovered, fact shows beyond reasonable doubt that the applicant was innocent. An objection was raised by the House of Lords, on the grounds that English courts do not establish innocence. Any acquittal operates only within the confines of the criminal trial. The Government acknowledged this, replacing the offensive words ‘was innocent’ with the phrase ‘did not commit’. From March 2014 on, the claimant for compensation has to show that he did not commit the offence with which he was charged and ultimately acquitted. But what’s the difference, even though the language differs? Whatever is the test, there will always be the issue for the compen­sating authority (the Minister) to determine the right test to decide the entitlement. The Minister will usually not be aided by what the criminal court judges will have said. In the case of the Birmingham Six, moreover, Lord Justice Lloyd specifically said that the question of innocence was a separate constitutional question:

Nothing in section 2 of the [Criminal Appeal Act 1968], or anywhere else obliges or entitles us to say whether we think that the appellant is innocent.

The theory is that it has never been the function of Ministers to pro­nounce upon whether a person has committed a crime. Only as and when a person is prosecuted for a crime are the courts exclusively performing the task of determining whether the accused is guilty or not. For the rest, the question is only of factual innocence.

The European Court of Human Rights^[150] has endorsed the English approach to the test for compensation for miscarriages of justice. Civilised legal systems cannot ignore the cliched test to which I referred at the start of the last chapter. One senses that the require­ment that a person charged with a criminal offence ‘shall be pre­sumed innocent until proven guilty’ may possess an after-life when compared with civil proceedings where no criminal prosecution has been initiated.