British changes to the standard of proof required of victims of miscarriages of justice before they can claim compensation are deeply troubling. Having failed in the House of Lords, the Home Office last week won Commons backing for similar measures requiring those acquitted of offences then to prove beyond reasonable doubt that they did not commit them to be eligible for damages.
The shift in the burden of proof reverses the presumption of innocence at the heart of criminal law, and as one Labour MP pointed out, would have made it difficult for the Birmingham Six or the Guildford Four to win compensation. As it happened, both groups found it necessary repeatedly to challenge in the courts snide suggestions that their eventual acquittals were not findings of innocence, two classes of which are created under the new rules.
Home Office minister Damian Green explained implausibly “that a miscarriage of justice arises only when there is in existence a fact which entirely exonerates the accused: in other words, a fact which makes it unquestionable that the accused did not commit the crime”. That did not constitute a reversal of the presumption of innocence, he insisted to opposition bewilderment, merely a clarification of the definition of “miscarriage of justice”.
Baroness Kennedy, a QC who helped get the Guildford Four acquitted, told the Lords it was an “affront to our system of law” that “flies in the face of one of our legal principles which acknowledges that it is very difficult for people to prove their innocence. In a few cases, DNA can prove innocence – but the cases are few.”
In Ireland compensation for wrongful convictions is provided for under a 1993 Act, but requires first a certificate of miscarriage of justice from the High Court. That involves evidence of culpability or negligence on the part of the State – in the case of Donegal publican Frank Shortt, earlier convicted after what Chief Justice Murray described as Garda conduct that was "nothing less than an obscenity", compensation of €500,000 was paid.