GUILT AND INNOCENCE

In a legal system (that of England and Wales) that only allows two pleas in a criminal trial, namely guilty and not guilty, is "not guilty" the same as "innocent"? You could be forgiven for thinking that they are indeed the same; if so, you would be wrong.

In 1997, 14-year old Billie-Jo Jenkins was bludgeoned to death with a metal tent peg at the home of her foster family. Her foster father Sion Jenkins was convicted of her murder, and his appeal against that conviction was rejected. In 2003, his case was taken up by the Criminal Cases Review Commission, the body charged with investigating possible miscarriages of justice. In 2004 the original conviction was quashed, on the grounds that it was unsafe. A retrial was ordered, but the jury was unable to reach a verdict. A second retrial ended in February 2006 with a hung jury. Since the prosecution had not proved their case beyond reasonable doubt, under criminal law rules, that meant that Jenkins was formally acquitted of the charges; in other words, he was - and is - not guilty of murdering his foster daughter.

Jenkins then applied to the Ministry of Justice for compensation for the time spent in prison from his original arrest until his release from prison on bail, pending the first retrial. That has just been refused, on the grounds that he is not entitled to it; according to the Ministry, that is because although not guilty, he is not "clearly innocent".

Compensation for miscarriages of justice in the U.K. is governed by statute; S.133 of the Criminal Justice Act 1988. Unlike in some other countries, it does not apply to time spent in jail awaiting a trial, at which a defendant is subsequently acquitted; nor does it apply to jail time, where a defendant is convicted, but subsequently acquitted on first appeal. These periods of imprisonment are considered, rightly or wrongly, to be part of the rough and tumble of ordinary life. Compensation is reserved to a small minority of cases, ones where something has clearly gone horribly amiss and the defendant has wrongly sat in jail for a long period of time. They are primarily (though not exclusively) ones in which the CCRC has been involved.

But what constitutes a "miscarriage of justice"? This was considered by the House of Lords in 2004 in Mullen. Mullen had been convicted of helping to run an IRA bomb factory in London, and was sentenced to 30 years in prison; his appeal against sentence was rejected. His conviction was later quashed, not on the grounds that it was not true (he never in fact appealed against that verdict), but because the British police and intelligence services had been involved in his illegal deportation from Zimbabwe, to which he had fled, in order to stand trial. The trial should have been stopped before it began. Against that background, it was not formally necessary for the judges, in refusing Mullen compensation for his lengthy time in prison, to decide exactly what miscarriage of justice meant. But in the two leading opinions, Lord Steyn would have limited it to the narrow range of cases, where "the person concerned was clearly innocent"; whereas Lord Bingham would have allowed a wider class, which also covered "failures of the trial process". Everyone agreed that Mullen's case, where the illegality undermining the conviction took place before the trial even started, was outside both.

In 2009, the Court of Appeal in Adams took things a bit further forward. Adams had been convicted in 1993 of murder, an offence which - in England - automatically carries a life sentence. Following the involvement of the CCRC, the conviction was eventually quashed in 2007 as unsafe, on the grounds that Adam's legal representatives had failed at his trial to deploy crucial pieces of evidence provided to them by the prosecution, evidence which might have swayed the jury. The first issue before the Court of Appeal in his application for compensation was whether these pieces of evidence constituted "new or newly discovered facts". Only if the miscarriage of justice is the result of new or newly discovered facts can compensation be paid. On this, the Court of Appeal ruled in Adams' favour; the facts must be new to him (which they were), not new to him and/or his legal representatives.

The second issue was what was meant by miscarriage of justice. In Adams itself, the Court of Appeal judged the facts against Lord Bingham's analysis, and found that it lay, as with Mullen, outside of it; so there was no need to decide between Lord Bingham and Lord Steyn. However, they also reviewed other Court of Appeal and first instance cases in this area, and found that judges in general favoured the narrow interpretation given by Lord Steyn. This is the legal basis for the Ministry of Justice's reliance in the Jenkins case on the "clearly innocent" test.

If this all sounds like legal hair-splitting of the "angels dancing on a pinhead" kind, then it is not. As Mr. Jenkins himself has pointed out, the costs of being wrongfully convicted of a crime can be huge, and not just a forced loss of income and prospects. As a convicted child-killer, his time in prison would not have been easy. And in his particular case, his wife divorced him while he was in prison, and then emigrated with their four children to Tasmania. That would be tough under any circumstances.

One solution to the problem might be to adopt the legal position in Scotland, which allows for three verdicts in criminal trials; guilty, not guilty and "not proven", a sort of legal halfway house. Compensation would then be given only in cases eventually decided as not guilty. But even that would not solve the wider difficulty caused by trying to mesh together two distinct legal systems. The domestic legislation puts into force the relevant article of the International Convention on Civil and Political Rights 1966, to which the U.K. is a signatory. Miscarriage of justice is a self-standing concept within that article, a concept which does not exist in English law and which has never been definitively resolved. The Court of Appeal, on the other hand, in quashing criminal convictions, never decides whether there has been a miscarriage of justice, but simply whether the original conviction is "unsafe". Clearly there is an overlap between the two ideas; equally clearly, there are some cases (eg Mullen), where they are distinct.

This problem has the potential to grow, following the U.K.'s adoption of the Human Rights Act. The European Court of Human Rights has at times criticised aspects of the common law tradition as not giving the defendant a fair trial; and the test case Al-Khawaja and Tahery v. U.K. has the potential to declare large parts of the criminal system as constituting a breach of the defendant's human rights. The final decision on that will be very interesting.

Meanwhile, there is one piece of good news on the horizon. The Supreme Court, successor to the House of Lords in its judicial capacity, has agreed to hear an appeal in the Adams case early next year. At the least, this should nail down the meaning of miscarriage of justice for the purposes of compensation claims. Mr Jenkins must be fervently hoping that their decision allows him to reopen his claim.

Walter Blotscher