It must be made clear when a person was wrongfully convicted

Published on Wednesday 1 September 2010 15:58

Someone - Mr or Ms X - has been charged with a criminal offence. He or she has stood trial and has not been convicted. How do the news bulletins report it?

"X was acquitted"? That is accurate enough. But if some newsdesks opt instead for "X was cleared" are their readers, viewers or listeners justified in reading into the report that X really didn't do it? By comparison "acquitted" becomes a less fulsome declaration of innocence. And if "cleared" becomes the gold standard of blamelessness, "found not guilty" can almost mean X probably did do it but got off.

Unless, of course, the comparison is being made in Scotland with "found not proven," that people nowhere near the trial, far less privy to the jury deliberations are quick to assume means "X was caught bang to rights but the jury chickened out or the prosecution blew it".

If it is difficult to pin down a consistent term for aquittal, it has become even more challenging to settle on agreed meaning of the phrase "miscarriage of justice". The judges of the UK Supreme Court are going to have to try.

The demand for clarification has arisen from cases in England and Northern Ireland in which men who had served lengthy terms of imprisonment for murder before their convictions were quashed have nevertheless been refused compensation under the scheme established throughout the UK under s133 of the 1988 Criminal Justice Act.

Eamonn MacDermott and Raymond McCartney were both convicted in 1979 of the murder of an RUC officer, Patrick McNulty. McCartney was further convicted of the murder of industrialist Jeffrey Agate. MacDermott, a journalist, and McCartney, now a Sinn Fein MLA, denied the charges and said their convictions relied principally on confessions that were forced out of them.Both were released in terms of the Good Friday Agreement - McCartney after 17 years in jail and MacDermott after 15 years - but both continued with appeals against conviction that were upheld in 2007.

The judge said: "In both cases we are left with a distinct sense of unease about their convictions, based as they are on admissions." But when MacDermott and McCartney applied for compensation for their wrongful conviction they were turned down.

Their cases will be heard in the coming months along with that of Andrew Adams, who was 23 years old when he was convicted in 1993 for the murder of a former science teacher, Alfred Royal, who was shot dead on his own doorstep in Gateshead in 1990.

Adams served 14 years of his life sentence before his conviction was overturned in 2007 on the basis of errors in the pretrial preparation of his case, which appeared to have been carried out by an unqualified clerk in his firm of solicitors who had then instructed the same barristers who had already represented another man who had been tried and acquitted of the same murder. When Adams applied for compensation he too was turned down on the basis that he could not demonstrate his conviction was overturned because of new or newly discovered facts or prove completely that he was innocent. The problem was that his legal team were in possession of the evidence that challenged the prosecution case, but for reasons of their own had not used them. The trial itself therefore was "fair," so therefore fell outside of the scheme as set out in the Criminal Justice Act.

The present leading judgement on the issue was delivered in 2004 by a five-judge bench in the House of Lords in the case of Nicholas Mullen, who had been convicted in 1990 of participating in an IRA conspiracy to cause explosions. He served nine years of a 30-year sentence until his conviction was overturned on the basis he had been unlawfully deported from Zimbabwe at the behest of MI6. Secret service agents boarded the plane on arrival in London, arrested Mullen and denied him access to a lawyer.

The bottom line was their Lordships asserted that for a conviction to be safe it had to be lawful. Albeit only by a majority, they upheld Mullen's appeal against conviction.

Giving the leading judgement for the majority, Lord Bingham stated that "the term 'wrongful convictions' is not a legal term of art and has no settled meaning". He then went to spell out the kaleidoscope of possible ways in which a conviction could be considered a miscarriage of justice, including the conviction of those who are completely innocent as well as those who, whether guilty or not, should not have been convicted at their trial.That may be because the evidence against them was perjured or fabricated or because evidence helpful to the defence was concealed or withheld or there was interference with the jury or judicial unfairness or misdirection.

"In cases of this kind," said Lord Bingham, "it may, or more often may not, be possible to say that the defendant is innocent but it is possible to say he has been wrongfully convicted."

At first sight the legal circumstances of the McCartney and MacDermott cases are significantly different from that of Andrew Adams, though their respective solicitors are similarly concerned that the courts have begun to interpret the law in such a way as to place a new burden of "proof of innocence" on applicants for compensation.

The compensation claim by Barry George - whose conviction for killing Jill Dando was quashed in 2008 - was suspended last week pending the outcome of these cases at the Supreme Court.

The cases, which are set to be heard in the new year, will also be watched with interest north of the Border. Although the Criminal Justice Act is UK legislation, the compensation scheme in Scotland is administered by the Scottish Government alongside an ex gratia scheme for exceptional cases not covered by the criteria in the statute.

The Scottish Criminal Cases Review Commission records that 22 of the 42 cases it has referred to the court of appeal in the last ten years where it found grounds to believe there might have been a miscarriage of justice resulted in the conviction being quashed.

Seventeen of the appeals were unsuccessful and three more were abandoned. Nine are still to be determined.

When the SCCRC opened for business it released the pent-up flood of the most famous wrongful convictions for the most serious offences. As a consequence, eight murder convictions, including those of Thomas Campbell and Joseph Steele, jailed for the so called "ice cream war" murders, and Raymond Gilmour who served 21 years for the rape and murder of a 16-year-old schoolgirl in a wood near Johnstone in 1981, and one rape conviction, were overturned.

The procedures for assessing the merits of an application for compensation and then settling on an agreed figure are slow. Scottish government statistics indicate that nine claims have been agreed and settled since 1999, six of them since the SCCRC "bulge" in the mid-2000s.

It appears three further claims have been authorised since 2007 but not yet settled and another five are currently being assessed.