The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?

Published date01 May 2012
AuthorHannah Quirk,Marny Requa
Date01 May 2012
The Supreme Court on Compensation for Miscarriages of
Justice: Is it better that ten innocents are denied
compensation than one guilty person receives it?
Hannah Quirk and Marny Requa*
The Supreme Court determined that a ‘fresh approach’was needed in an attempt to bring some
clarity to the issue of the eligibility for compensation of those who have had their convictions
quashed by the Court of Appeal.The definition that the majority agreed upon was that ‘a new fact
will show that a miscarriage of justice has occurred when it so undermines the evidence against the
defendant that no conviction could possibly be based upon it’.This article argues that the judgment
suffers from a failure to consider the purpose of the legislation; that it is unclear whether the test is
normative or historical and that this presents a particular problem in cases relating to the Northern
Ireland conflict.The Court focuses on the guilt of the appellant and excludes from its consideration
any notion of culpability by the state,which is a cause for concer n.
‘Miscarriage of justice’ is a nebulous term. It has long been recognised that it
means different things in legal and lay terms,1but its definition also alters
depending on the stage of the legal process, as those who succeed in having their
convictions overturned may not have suffered a miscarriage of justice according
to the compensation scheme for such cases. The previous leading case on
compensation, R(Mullen)vSecretary of State for the Home Department2(Mullen),
further complicated matters by basing its unanimous decision on two conflicting
opinions: the ‘narrow’ definition of Lord Steyn that a miscarriage of justice
referred only to the conviction of the factually innocent; and the ‘wider’ defini-
tion of Lord Bingham which included cases in which something had gone
seriously wrong with the trial process, resulting in an improper conviction.3The
cases that followed Mullen4had proceeded on the basis that neither test was
satisfied.This approach was becoming difficult to sustain and the Supreme Court
*School of Law, University of Manchester; School of Law, Queen’s University Belfast.Thanks to the
MLR reviewer for his/her helpful comments and to GordonAnthony for responding to queries on a
previous draft of this article.Any errors or omissions remain our own.
1 R. Nobles and D. Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of
Crisis (Oxford: OUP, 2000).
2R(Mullen)vSecretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1.
3ibid at [4], [56].
4R (Murphy) vSecretary of State for the Home Department [2005] EWHC 140 (Admin), [2005] 1WLR
3516; R(Clibery)vSecretary of State for the Home Department [2007] EWHC 1855 (Admin); In re
Boyle’s Application [2008] NICA 35; R(Allen)(formerly Harris)vSecretary of State for Justice [2008]
EWCA Civ 808, [2009] 2 All ER 1; R(Siddall)vSecretary of State for Justice [2009] EWHC 482
© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(3) MLR 387–436
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA

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