The Act New section 66H of the 1998 Act: Interpretation Section 61: Compensation for miscarriages of justice
432.Section 61 amends the current provision for compensating victims of miscarriages of justice in section 133 of the 1988 Act.
433.Section 133(1) of the 1988 Act sets out the test which the Secretary of State applies in determining whether there is a right to compensation in a particular case. Section 133(1) is not amended by this Act.
434.Currently there is no time limit for making an application to the Secretary of State for compensation in respect of a miscarriage of justice. This means that applications can be received in respect of convictions that were quashed many years ago.
435.Subsection (3) amends section 133(2) of the 1988 Act to impose a time limit of two years within which an application under that section must be made. The two-year period begins with the date on which the conviction of the applicant was reversed or the date on which he was granted a pardon.
436.Subsection (3) also inserts a new section 133(2A) into the 1988 Act. This allows an application made outside the new time limit to be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so. For example, the Secretary of State might regard the applicant being incapacitated for all or almost all of the two-year period as an exceptional circumstance. However it is not anticipated that the Secretary of State would regard the applicant being unaware of the right to apply for compensation as an exceptional circumstance.
437.Compensation can only be paid to those who have been pardoned or whose convictions have been “reversed”. Section 133(5) of the 1988 Act currently provides that a conviction has been “reversed” if it has been quashed, either on an appeal out of time or following one of several types of reference. Subsection (5) inserts two new subsections (5A) and (5B) into section 133 of the 1988 Act. The new subsection (5A) amends the definition of “reversed” for the purposes of section 133 in cases in which the conviction has been quashed but a retrial has been ordered. In such a case the conviction will now only be “reversed” when the person is acquitted of all offences at retrial (or when the prosecution indicates that it has decided not to proceed with a retrial). In such a case, it is the occurrence of one of these two events that will trigger the right to apply for compensation and the two-year time period within which an application should be made. The new subsection (5B) provides that references to a retrial in new subsection (5A) include proceedings in a magistrates’ court following remission of a case from the Crown Court.
438.If the Secretary of State decides that there is a right to compensation under section 133(1), the amount of compensation is assessed by an assessor.
439.Subsections (4) and (7) replace the existing section 133(4A) of the 1988 Act, which currently makes provision about the assessment of the amount of compensation, with new sections 133A and 133B. Currently:
	There is no limit on the amount of compensation payable in respect of a miscarriage of justice. In determining the amount to be paid, the assessor uses principles analogous to those governing the assessment of damages for civil wrongs. Assessments are, as far as possible, intended to put the applicant back to the financial position he or she would have been in but for the miscarriage of justice.
	Section 133(4A) of the 1988 Act requires the assessor, when assessing the element of an award attributable to suffering, harm to reputation or similar damage (i.e. non-pecuniary loss), to take account of: (a) the seriousness of the offence and the severity of the punishment suffered by the applicant as a result of the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) other convictions of the applicant and any punishment resulting from them.
	The Note for Guidance sent to successful applicants states that the assessor may also make a deduction from the non-pecuniary loss element of an award to take account of conduct of the applicant which could be construed as contributing to the miscarriage of justice.
	As contributory conduct and other convictions and punishments were not taken into account in assessing the pecuniary element of an award, significant levels of awards could be made to applicants who have other serious convictions or who had contributed to the occurrence of the miscarriage of justice.
440.The new section 133A(2) preserves the effect of the existing section 133(4A)(a) and (4A)(b) of the 1988 Act (as to which, see the second bullet point in the paragraph above).
441.Section 133A(3) provides that the assessor may make deductions from the overall award, not just from the non-pecuniary element, by reason of any conduct of the applicant which appears to the assessor to have caused or contributed to the conviction and by reason of other convictions of the applicant and any resulting punishments.
442.Section 133A(4) allows the assessor to make only a nominal award if he considers there to be exceptional circumstances which justify doing so. This might be the result, for example, in cases in which the applicant’s own conduct contributed very significantly to the conviction, and/or the applicant has either a lengthy criminal record or has been convicted of particularly serious offences (whether before or after the miscarriage of justice in respect of which the claim is being made).
443.Section 133A(5) introduces overall limits on the amount of compensation payable in respect of a particular miscarriage of justice. The limit is £1,000,000 where the new section 133B applies (in summary, this is where the applicant has been in detention for more than 10 years as a result of the conviction) and £500,000 in all other cases. No compensation will be payable for pecuniary or non-pecuniary loss in excess of the relevant limit.
444.Section 133A(6) introduces a limit on the amount of compensation payable in respect of each year of an applicant’s lost earnings or earnings capacity. That limit is one and a half times the median annual gross earnings according to the latest figures published by the Office for National Statistics at the time of the assessment (rather than at the time the loss was suffered). Applicants, no matter what their actual or projected level of earnings, will not be compensated for any losses of earnings or earnings capacity at a rate higher than the limit. The same limit applies in respect of claims made by victims of violent crime to the Criminal Injuries Compensation Authority.
445.Section 133A(7) and (8) enables the overall compensation limit (as set by section 133A(5)) and the earnings compensation limit (as set by section 133A(6)) to be amended by the Secretary of State by order (subject to the affirmative procedure).
446.Section 133B defines when the higher overall compensation limit applies. The higher limit applies where the applicant has been in “qualifying detention” for at least 10 years at the time the conviction is reversed or the pardon is given. Qualifying detention includes, for example: time spent in prison or in a young offenders institution as a result of the sentence passed for the conviction which was subsequently quashed; time spent detained in a hospital under mental health legislation as a result of the conviction (ignoring, for these purposes, other conditions for such detention such as those relating to the person’s health); and time spent on remand for the offence or for another offence where the charge was founded on the same facts or evidence.
447.However, a period will not count toward the 10-year threshold if during that period the applicant was in both “qualifying detention” and “excluded concurrent detention”. Excluded concurrent detention is defined in the section, and includes, for example, periods in which the applicant was serving a concurrent sentence for a second conviction which has not been quashed (and has not resulted in a pardon). Note that in circumstances where the second conviction has been quashed but the person has been convicted at retrial and again sentenced to detention, the sentence imposed at retrial runs from the time when a like sentence passed at the original trial would have begun (see the 1968 Act, Schedule 2). Therefore, pre-retrial detention can be “excluded concurrent detention” if the retrial results in a conviction and sentence of detention.
448.Subsection (8) amends section 172 of the 1988 Act to extend the new sections 133A and 133B to Northern Ireland as well as England and Wales.
449.Paragraph 22 of Schedule 27 sets out some transitional provisions dealing with the application of the new measures in section 61. Paragraph 22(1) provides that the two-year time limit introduced by section 61(3) will only apply to applications for compensation made in relation to convictions reversed or pardons given on or after the date on which section 61 comes into force (the commencement date).
450.As a result of paragraph 22(2), the provisions for the assessment of compensation in the new sections 133A and 133B will apply in relation to applications made on or after the commencement date, and also to applications made before the commencement date but in respect of which the Secretary of State has not, before that date, determined whether there is a right to compensation.
451.Paragraph 22(3) and (4) provide that the changes to the definition of “reversed” introduced by section 61(5) apply to any conviction quashed on an appeal out of time (whether before or after the commencement date) if an application for compensation in relation to that conviction has not been made before the commencement date.
452.Paragraph 22(5) and (6) apply a time limit to applications for compensation in relation to convictions reversed and pardons given before the commencement date. Such applications must be made within the two years beginning with the commencement date. Applications made outside this time limit can be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so.