Victims of miscarriages of justice are having their injustice made worse by a new change of law, argues Dr Hannah Quirk.

For all the talk of the much derided ‘compensation culture’ that has supposedly developed in this country, the reality is that most victims of miscarriages of justice are not entitled to any redress from the state.

Successive governments have whittled down eligibility. The Labour Home Secretary Charles Clarke abolished the ex gratia scheme in 2006, which had allowed discretionary payments to be made. This has already caused hardship to those who did not meet the statutory test.

Even though the numbers currently eligible for compensation would leave several fingers free if counted on one hand, following a vote in the House of Lords on the Anti-social Behaviour, Crime and Policing Bill 2013-14, this situation is about to get worse.

The government has international obligations to provide compensation for those who have suffered a miscarriage of justice. Section 133 of the Criminal Justice Act 1988 provides for the payment of compensation to a person whose conviction has been reversed as a result of a new, or newly discovered, fact which shows beyond reasonable doubt that a “miscarriage of justice” has occurred.

The devil in this detail, of course, is what is meant by a miscarriage of justice.

Is a victim of a miscarriage of justice somebody, such as Stefan Kiszko who forensic evidence  proved was innocent of any involvement in the rape and murder of a schoolgirl? Or is it Sally Clarke, whose conviction for murdering her babies was quashed because of evidence which cast doubt on her conviction, but did not prove her innocence? Or is it Nicholas Mullen, whose conviction for running an IRA ‘bomb-factory’ was overturned because the government had acted unlawfully in extraditing him for trial?

Following legal challenges by those denied compensation, including Barry George, who was wrongly convicted of the murder of Jill Dando, the government is seeking to narrow the test. It argues that this change will bring clarity and save money. Opponents argue that it will be challenged in the courts and is wrong in principle.

The new test will define a miscarriage of justice as occurring when “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.”

On the face of it, this is a straightforward test. The problem is that few of the most notorious miscarriages of justice would meet this standard of proof.

The Court of Appeal looks at the ‘safety’ of a conviction – it very rarely says that a successful appellant is innocent. Short of new DNA evidence, very few new facts will establish innocence – most will just make it impossible to be sure that the jury would have convicted.

Under the proposed test, notwithstanding the apology they received from then Prime Minister Tony Blair, the Guildford Four would not be eligible.

Sometimes it requires more than one fact to quash a conviction. If the amendment is read literally, this could exclude cases such as the Birmingham Six case. In their case, the Court might have upheld the convictions if it had only had evidence of the rewritten police interviews, or the flawed scientific tests which, taken together, meant their convictions had to be overturned.

Some appellants may not know why their conviction has been quashed – for example, to protect informants – but this could also make it impossible for those wrongly convicted due to collusion or corruption to qualify. Only last month, the Home Secretary announced that the findings of the Ellison Review into undercover policing meant that the safety of many convictions would have to be reviewed.

Those who have been wrongly convicted may have spent years in prison. They may have been assaulted because of the crimes they were said to have committed. Their children will have grown up; relationships often break under the strain; employment and accommodation are difficult to find; and they receive little help on release.

Psychiatrist Adrian Grounds has found evidence of post-traumatic stress disorder in the wrongly convicted, comparable to that of those who have been in combat zones.

There is obviously a spectrum of harm when a conviction is overturned, but this could be reflected in the amount of compensation paid rather than making the scheme so narrow.

It is wrong in principle, and potentially contravenes the European Convention on Human Rights, to expect somebody to prove their innocence and it contravenes the separation of powers for politicians to decide if a person is innocent or not.

This latest legal change is a retrograde, mean-spirited and potentially unlawful measure. It will damage British justice and the individuals involved in these cases. As Lord Pannick expressed it so eloquently in the House of Lords debate: “[there is] nothing more likely to keep open the sore of a regrettable miscarriage of justice.”