Quid pro quo? The effect of changing the compensation schemes on wrongful convictions' cost for the public budget in the United Kingdom

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Quid pro quo? - The effect of changing the compensation schemes on

wrongful convictions’ cost for the public budget in the United Kingdom

Name: Ana Maria Nechifor Student Number: s2112817 Supervisor: dr. Andrei Poama Master: MSc Public Administration Master Track: Economics and Governance Date: 11.01.2019

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Abstract

The issue of the miscarriages of justice has been met with a rollercoaster of attention coming either from media or from officials. The academia has also paid some attention to the topic, but limited to certain stance – legal, sociological, psychological. Through time it has become more and more apparent the need for a better, more efficient and more ethical criminal justice system. This paper offers an economic analysis of the costs of wrongful convictions connected to the 2006 reform of the compensatory schemes in the UK. The intent of the thesis is to offer a panoramic image of the criminal justice system in a contemporary democracy and welfare state, the UK. In order to do so, it analyses the different compensation schemes, what they entail, their scope and effect, and then the costs that have been categorised in order to ease the understanding. The analysis only concerns the public costs because these are paid from the public budget and can be scrutinised and used as an argument for reforms or governmental interventions, as it was the case here.

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Introduction

“There is no client as scary as an innocent man.” M. Haller, 1962

In 2013, the streets were meeting Victor Nealon, a former postman, now 53, with only £46 in his pockets and no place to live. He was free, after 17 years of wrongful imprisonment for raping a woman in 1997 (Topham, 2013). His accusation was quashed and he was declared an innocent man, tossed on the streets as if exonerating1_{him was enough (Topham, 2013). This is neither an extraordinary} nor a singular case, although it might sound like one.

In the last decades it has become more apparent that the criminal justice system is prone to making mistakes which, in turn, are not easily discovered. More and more countries like US, Canada, the UK, Italy, Australia, New Zealand, etc., come on board with the idea that there has to be a system reform that checks for the failures of the system. Bounded rationality is a largely discussed topic of behavioural economics which accommodates the idea that people are not homo economicus, but that they make decisions based on their cognitive capabilities, time and the available information (Simon, 1982; Eide, 2006; Bentham,1788; Becker,1968). As it can be seen, there were several tries at how to deal with criminology from an economic perspective, and how to justify decisions based on economic grounds and rules.

Back in 1788, Bentham brought a groundbreaking theory which was assuming that “the profit of the crime is the force which urges man to delinquency [whereas] the pain of the punishment is the forced employed to restrain him from it” (Bentham, 1843, p. 399). Thus, depending on the size of these “forces”, the man will make a choice. On the same line, the theory was transformed into a

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mathematical equation, demonstrating that the choices could be based on the expected utility, the income of the individual, the costs and the gains from the crime :

E(U)[expected utility] = PU(Y-f) + (1-P)U(Y)

(Eide, 2006, p. 208)

Here, P is the probability of being convicted if caught, f is the cost of being convicted (punishment) and Y is the benefit from the crime: monetary and personal satisfaction (ibid). This, in my opinion, is the difference between pure economists and pure sociologists. The economists, originally, have tried to rationalise the decisions, without taking into account the detterents, the environment or the typology of the human mind, whereas the sociologists are looking exactly at the other side of the coin, what the economists have ignored, probably because it is extremely hard to quantify the “unseen” (decisions, triggers for decisions, norms, environment).

Hence, following the basis of behavioural economics, we can extrapolate it to the criminal justice system and come to the conclusion that mistakes can and do happen. Still, in this case, the mistakes can affect individuals for a long period of time directly, through either wrongful convictions or extreme sentencing – sentences that are not directly proportional with the size of the crimes/ offences (Gupta et al., 2015). Indirectly, there is a collateral damage of these judiciary failures, meaning that not only are the victims of wrongful convictions and their families affected, but there is also a real possibility that there might be victims of additional crimes of the real offenders who benefited from ‘wrongful liberty’ while someone else was serving their time in prison ( Naughton, 2014).This is an antagonistic view with the objectives of the criminal justice system, captured in Blackstone’s ration which is to minimise the wrongful convictions (Blackstone, 1765, p.358).

An answer to this fiasco came from ‘The Innocence Project’ (2009) which has studied the effect of wrongful convictions throughout US as a consequence of the criminal system’s failure. Since its beginning, academy and media have paid increasing attention towards the miscarriages of justice as

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their research went beyond the tip of the iceberg when it comes to wrongful convictions. Their results have shocked the entire world and countries like UK, Canada, Italy, etc., have started to follow lead. Their approach was, arguably, not as extensive as in the US and their research has been limited to helping individuals or the families of wrongfully convicted individuals pro bono (INUK, n.d). For instance, in the UK, the Innocence Network has 36 projects which were set up in universities throughout the UK that provide help with investigations and so far they have assessed more than 1,000 applications (INUK, n.d). Their take on the problem at stake was to prove that the Criminal Cases Review Commission (CCRC) is not the panacea to the issue of judicial mistakes (INUK, n.d). Still, the facet of the problem which is not seen and not discussed with the public is the actual cost (monetary) of the wrongful convictions. Besides taking up years from a person’s life because of a judicial mistake and besides the psychical effects that it has on the wrongfully convicted inmates and their families, there is a cost for the whole society, that is yet to be discovered. Thus, this paper’s intent is to look at this problem in the UK specifically, because of the data availability, meaning that in Europe it was the only country more transparent when it comes to miscarriages of justice. As an example, if we take the Netherlands, although studies conducted by Tom Derksen (2006) show that courts make around 1000 mistakes per year, the Supreme Court in the Netherlands has found from 2006 to 2016 only 5 cases of miscarriages of justice, so it might happen that some of the cases are sealed (Ton Derksen in DutchNews, 2016).

After researching the subject, it turns out that there is no data provided by the government or the respective courts, like the Court of Appeal (CACD) or even the CCRC, with regards to the costs of wrongful convictions for the public purse. Furthermore, there is also scattered information with regards to the actual number of wrongfully convicted individuals that have been exonerated, let alone the rate of wrongful convictions. For instance, Michael Naughton (2000), who is very adamant about the issues of the Criminal Justice System in the UK, was noting in 2000 that miscarriages of the CJS are “not merely a high profile intermittent problem; they are a routine feature of England and Wales’

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system”. The “answer” towards this issue of miscarriages of the CJS is to provide the wrongfully convicted with compensations, but the compensation schemes have become a rather problematic subject on their own. Although the research regarding the number of wrongful convictions has grown, altogether with the apparition of different organisational bodies that have the function of investigating them, there is little to no attention paid towards what happens post-exoneration (Norris, 2012).

Connecting this mechanism to the UK, we can analyse the effect of changing the structure of the compensations schemes in 2006 on the cost of wrongful convictions. Until 2006, the Home Secretary was using a discretionary compensation scheme. The criteria were set by Douglas Hurd (the then Home Secretary) in 1985 and every wrongfully convicted person had the right to receive a compensation if he had spent time in custody (imprisonment) and had received a pardon or exoneration by the Court of Appeal or his custody time has been a result of serious fault on the part of the investigators (police/ public authority) or the case has involved exceptional circumstances (which have not been clearly defined) that have exonerated the person (Lipscombe & Beard, 2015). The intention was to avoid situations in which individuals would apply for compensations in cases in which they were found not guilty due to the prosecution inability to prove their culpability (ibid.). This situation changed in 2006, with a statement made by the new Home Secretary, Charles Clarke, which announced the termination of discretionary compensation schemes because of the costs to the public purse - over 2 million pounds a year (ibid., p.3). Hence, the new compensation scheme, called

statutory, is mostly based on art. 14 (6) of the International Covenant on Civil and Political Rights,

and has existed since 1988 when Section 133 of the Criminal Justice Act 1988, has been ratified (ibid.). The scope of this compensation scheme is to narrow the size of the compensations by capping them at 500,000 pounds for a wrongful imprisonment for less than ten years and 1,000,000 pounds for an imprisonment for more than ten years (ibid.). Another novelty was limiting the time for applying for compensations, narrowing the definition of “miscarriages of justice” and adding other

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“deductions” like saved living expenses for accommodation and food (Lipscombe & Beard, 2015). All the differences between these two will be discussed in depth in the following chapter.

The idea behind this research, as previously explained, is to seek the effect this change has had on the cost of exonerations, since the intended effect of the reform was to diminish the costs for the public purse. Before turning to the research question and the hypotheses derived from it, it is helpful to explain the different components of the monetary costs. Sillbert et al. (2015) and I consider that the costs of wrongful convictions are not only the compensations entitled after the exoneration, but also the costs of imprisonment and all the relevant court related costs. At first glance, this might not seem directly connected to the compensatory scheme, which is right. The mechanism is indirect, but nonetheless important for the bigger picture. The compensations are calculated based on the years spent in prison and the costs that are “saved” (food, accommodation, etc.) are deducted, hence it is relevant to look first are the costs pre exoneration.

Thus, the costs can be divided as following:

o Detention expenditures – two categories, the operating costs: staff, accommodation, food, supplies, medical care, etc.; capital costs – construction, land purchasing. Out of these two categories only the first one will be analysed because the capital costs are not dependent on the number of inmates and they would overestimate the effect if included, hence it is better to not take them into consideration.

o Trial, Appeal, Attorney – Because only the Court of Appeal (division of the Crown Court) can lead to an exoneration those are the only costs relevant for this analysis. These costs are published by the Court of Appeal Criminal Division (CACD) quarterly. The attorney costs are limited to only those paid from the public budget. In cases in which a person cannot afford to have a private attorney, a public attorney is being assigned to the case.

o Compensation – the compensation costs are divided into two sections, each connected to the relevant compensatory scheme. Before 2006 the discretionary scheme was used in cases of

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wrongful conviction. After 2006, the Home Secretary – responsible for the cases of miscarriages of justice – has changed the compensatory system and has put in place the statutory compensation system, which was limiting the access to compensations, even in the situations in which one person was being exonerated. Thus, the calculation methods are different for each of these compensatory categories, but their respective components will be discussed in detail in the empirical analysis.

By knowing this, we can turn to the research question:

What is the effect of the two different compensations schemes for wrongful convictions on the public budget in UK since 2000?

The aim is to analyse the difference on the budget between two periods: pre-2006 and post-2006, 2006 being the year of the compensatory scheme reform. Hence, we can draw, based on this information and on the theoretical background, a set of hypotheses that will be tested through empirical analysis. Their aim is to test whether the compensations have a positive effect (less money paid from the public budget) or negative effect (more money paid from the public budget).

1. The statutory compensation scheme (the compensatory system after 2006) has a positive effect on the public costs for exonerations

2. The discretionary compensation scheme (the compensatory system before 2006) has a negative effect on the public costs for exonerations

3. The statutory compensation scheme affects positively the detention expenditures

In order to answer this question, it is crucial to look into the structural differences between the two compensation schemes (what they entail and their scope), then to look at the costs of wrongful convictions pre-exoneration (imprisonment costs) and the costs of wrongful convictions

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post-exoneration (compensation) and then compare them before and after the 2006 reform. The reason for distinguishing pre and post exoneration is to make the analysis reliable and feasible to replicate. An important element is the lack of the collateral damages (non-pecuniary costs)2, that are not included

in the equations because their value is unknown and their estimation is not reliable and would skew the data.

The data collection has been conducted individually for 2000-2017, from the Innocence Project international database, CCRC cases database, Falsely Accused UK database, and newspapers like The Guardian and Forbes, since, as stated, in the world with the sole exception of the USE, there is no complete database released by the governments or any of the other relevant institutions/ courts. Furthermore, the research design can fall in the category of within case analysis, because it explores the relationship between the dependent and independent variable in one single unit. This type of research was chosen because its intent is not to generalise, but to test whether the hypotheses developed in the following chapter hold or not. Hence, firstly there will be used content analysis in order to completely assess the differences between the two compensatory schemes, followed by quantitative analysis. The second analysis, as previously stated, is tailored to fit this project, because of the lack of academic articles that focus exclusively on this subject. Hence, the economic analysis is based on the methodology developed by Silbert et at., (2015), Naughton (n.d), Baum (2016) and WSIPP (2017), but refined in such a way to be accurate and to fit the UK system.

Thus, the first chapter looks into the theoretical background, namely, the theories concerning both compensatory schemes and the costs of exonerations. With regards to compensatory schemes, I look both into their actual legal foundation (Criminal Justice Act 1988, UN International Covenant on Civil and Political Rights art 14(6), etc.,), the academic reviews of them, such as Naughton (2003),

2_{The non-pecuniary costs are the costs of emotional harm, the loss of future wages, physical harm, so things that are} not easily quantifiable into a monetary value. It will be discussed through the paper that there is an assessor whose job is to estimate these non-pecuniary costs, but without having any public information about these assessments or about the claims of the exonerees with regards to them, it is extremely difficult, and in the end, not reliable to attempt to estimate them.

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Ingman (1996), Karaffa et al. (2017), Simms (2016) and also the work of different independent bodies like Falsely Accused UK that have examined them. For the second part, with regards to the cost of exonerations, conceptualizing them is more difficult than it might seem. For this reason, it is helpful to compare different theories in order to comprehend the concept and understand how they have been conceptualized through time. For instance, the way Silbert et al. (2015) see the wrongful conviction costs is different from Baum’s (2016) definition. These, in turn, are different from my own definition. The reason behind is that the UK system is different from the US system and some of the costs are not included (public litigation, for instance) and the compensatory schemes are completely different. After extensively explaining these concepts, the following chapter will deal with the research design.

Hence, the second chapter explains the methodology used for operationalising the concepts. It formulates the equations used to calculate the costs and how they can be understood for replication. It also sets the limits of the mathematical background since some of the costs can only be estimations, based on all the available data. The following chapter, and the backbone of the thesis, is divided in four main parts, in order to ease the understanding and the reading: the analysis of the costs pre exonerations, the costs post exonerations, the comparison before the 2006 reform and after, and the explanation of the findings connected to the hypotheses developed in chapter 1.

Lastly, the conclusion reviews the aim of the thesis, the main findings and the answer to the research question altogether with policy recommendation sketched upon the findings of the thesis. In the end, the aim of this paper is to fill an academic gap and to bring to life aggravated issues of the criminal justice system that not only affects the individuals at stake and their families, but the society overall. Also, for the Master track, naming, Economics and Governance, this thesis is dealing with economic concepts applied to legal systems, part of Public Administration. Hence, it is a bridge between the two, and it is a novelty in terms of the range of academic papers written on the subject.

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Theoretical Framework

“It didn't matter in terms of the strategy of the case whether the defendant "did it" or not. What mattered was the evidence against him -- the proof -- and if and how it could be neutralized. My job was to bury the proof, to color the proof a shade of gray. Gray was the color of reasonable doubt.” M. Connelly, 2005

There is no set in stone answer when it comes to compensating individuals for everything that has been taken away from them while being wrongfully convicted. Besides the lost years and the deterioration of the relationships with friends and family, wrongfully convicted persons also have to face stigma even after being exonerated (Simms, 2016, p. 161). It appears that ‘reasonable doubt’ is a double-edged sword concept, since stigmatisation appears after the society has doubts about the exoneration. In the last decade there were few studies that researched the psychological effect of judicial miscarriages. For instance, Grounds (2004) has shown that out of 18 exonerated individuals who have had no psychiatric episodes before their convictions, 14 had personality disorders, 12 had post-traumatic stress disorder, 10 also had depressive disorder, out of which 5 have shown panic disorder and paranoid symptoms, and 3 where alcoholic/ drug addicts. Hence, these 18 individuals have shown multiple psychiatric diseases after being exonerated, and let in the care of no one.

The rhetoric of the issues of the criminal justice system has spurred through time. After 1989 when the first person has been exonerated due to DNA evidence, there was a paradigm shift, and a new movement appeared - the innocence movement (Thompson et al., 2012, p. 1374). In the UK, after the famous Guildford four3_{and Birmingham Six}4_{, the CJS went itself ‘on trial’, by diminishing the}

3_{An IRA bombing event for which four people were wrongfully convicted. Gerry Conlon was convicted, but the sole} evidence that he had not been in Guilford was not shown in court at the time of the trial. The rest were convicted because of the mistreatment of the police. The convictions were quashed in 1989 (Holt, 2010)

4_{Six men were convicted for the Birmingham pub bombs in 1975 which were attributed to IRA (Irish Republican Army} – illegal organisation which fought for the independence of the Northern Ireland). The men were originally from the Northern Ireland and a couple of misfortunate events have led to the conviction of them. In 1985, a television programme has demonstrated that the solvent that was used by the Home Office forensic scientist, to test for traces of nitroglycerine, would have produced a positive test if the men would have also handled nitrocellulose. Thus, the results of the test should not have been considered forensic evidence in the court. For this reason, after the television

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people’s confidence in its work (Naughton, 2010, p. 28). Thus, more and more attention was brought to the topic and it is still capturing researchers’ interest.

The relevant literature has examined, so far, the causes of judicial miscarriage, the effects of exonerations, and what should be done after the exonerations. With regards to the causes of judicial miscarriage, Roberts (2003) considers that the CJS is not a product of racial bias or financial capabilities. He divides the system into two well-known views, Blackstone’s view of the “law as a shield” - better for 10 guilty people to be freed than for one innocent individual to be wrongfully convicted (Roberts, 2003, p. 569) or Bentham’s view, which is more of an utilitarianism view because it sees the world as the good of the society, even at the expense of innocent people, called in his words “law as a weapon” (ibid.). In his opinion, besides these inherent views on the effects of the law conduct, another major cause of wrongful conviction is plea bargaining, because it undermines the investigations by making them sloppy (Roberts, 2003, p. 572). Other causes have been investigated by various papers: eyewitness identification error (Wells et Olson, 1998); prosecutorial misconduct or ineffective assistance (Gerhman, 1999; the problem of false confessions (Kassin, 1997, Drizin et Leo, 2004) and race based misjudgments (Young, 2004; Harmon, 2004). On the other side, the Innocence Project has a larger database of causes which has been used by several other associations (New York Bar, Western Michigan University, Michigan Innocence Clinic, New England Innocence Project, etc.). These include, besides the wrong eyewitness identification, false confessions and prosecutorial misconduct, the unreliable forensic science, and jailhouse snitch testimony (The Innocence Project, n.d; Naughton, 2010).

The life after exoneration has made the front page of the New York Times in 2003 by bringing to light the idea that bringing freedom to an innocent man is a first step, but not the only one (Bazelon, 2003). The lack of financial resources, social services, housing and jobs have been identified as

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affecting the psyche for long term, perhaps even more than being imprisoned per se, as Grounds (2004) suggests. What is important to note here is that social services, housing and jobs, assured by the state can only be discussed in the welfare states, because they are the only ones that have social services schemes set in place. Hence, because the UK is a welfare state, we can consider this aspect of the issue as well. Thompson et al. (2012) mention that most of the exonerated have kept feeling guilty and are discriminated and stigmatised. Of course, the list of the effects of the exoneration can be longer, with the sole positive one that the innocence is proved and freedom is granted. The cornerstone, sadly, is that compensatory schemes are fiercely debated.

The need for compensatory schemes has been exemplified by different academic articles, but also by associations that work for aiding people who have been wrongfully convicted. The compensations can be connected to a bigger image – justice. In a sense, providing a person which has been wrongfully convicted with a compensation for it, is to offer the person justice. The concept of justice can be traced back to 1921, when it was famously drawn by John Rawls, bringing a novelty to what can be considered just in a society, and it “denies that the loss of freedom for some is made right by a greater good shared by others” (Rawls, revised edition, 1999, p. 3). In this sense, Rawls did not consider that by paying a compensation you could make right the wrong done in first instance, but in a just society it would have never been allowed to happen. Rawls’ world is a utopia, contested by the sole idea that people are neither rational, nor flawless, but it shows the interest in what justice is and how it should be dealt with it.

Connected to the abovementioned theory, Robert Amdur (1979) extrapolates the concept of justice to the concept of compensation and connects them by analysing who should pay the compensations, who is entitled to receive them, and how much should they amount. Although not directly connected to the compensatory schemes in cases of wrongful conviction, the reason for mentioning it here is that it answers the three above-mentioned questions that are relevant for this paper. For the first

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question “who should pay”, the author develops two principles: 1- the perpetrators of injustice should pay; 2- those who benefited from injustice should pay (Amdur, 1979, p. 230). Out of these two, the first principle is more applicable because in cases of wrongful conviction perhaps that the only one who has to win is the actual wrongdoer, that is free, given the fact that another person has been punished for his offences. The author identifies that it is difficult to answer the question of responsibility because usually there is not only one perpetrator of injustice. In our case, the compensations are paid by the Ministry of Justice from the public budget, because in a case of a justice miscarriage, the Ministry is held accountable. Hence, it is understandable why the legislation that has reformed the compensatory system was very much concerned with the concept of “miscarriage of justice”. With regards to the second question, the answer is in essence straightforward – those who have suffered a miscarriage of justice should be entitled to receive a compensation – . In reality, it is problematic to assess who exactly is a victim of a miscarriage, because of the reform in 2006 that has limited the definition and has made it exponentially harder to qualify. This leaves us with the last question – how much should be paid. Amdur considers that with regards to the costs of compensations, we should return to the Rawlsian concept of justice, or utilitarianism, which advocates, inter alia, an even distribution of the costs in society, so they do not end up being assigned to only a small group. In our case, the costs of compensations, as already exposed, are paid from the public budget, so they are evenly distributed, hence falling under what Amdur considered to be just. On the same line, other authors have explored the matter of costs with regards to the compensations.

Thus, Norris (2013) has provided an in-depth analysis of the existent US compensation schemes in comparison to the model compensatory scheme developed by the Innocence Project in 2009. Bernhard (1999; 2009) considered that the fair way to think about these schemes is to align them to the crime victim’s legislation, so as to not be a huge discrepancy between the victim of the crime and the victim of the system, a narrative reinforced by the UK system as well. The financial aid is mandatory since some of the exonerated are left with no money right after being freed, as Lopez

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(2002), Norris (2013), Naughton (2012), The Innocence Project (2009) Bernhard (2004) and Lonergan (2008) suggest. On the same line, and making the argument stronger, Mandery et al. (2013) analyse and cite a study conducted by the Life After Exoneration Program developed in the US. The study showed that two thirds out of sixty individuals were not financially independent even after a long period after the exoneration, meaning that the lack of compensation was a “substantial barrier to recovery” (Mandery et al., 2013, p. 554).

On the other side, Armbrust (2004), Lonergan (2008), Westervelt and Cook (2010), Campbell and Denov (2004), Chunias and Aufgang (2008) call for the attention to other types of aid, not only financial help, such as mental and physical insurance/care and education. One important point is that the difference between exonerated and paroled/ released from prison has to be recognised. Although it might seem trivial, to make the differentiation is crucial, as the exonerated have different needs, and call for a different framework. Campbell and Denov (2004) placed the importance of the compensatory scheme into another paradigm, by considering its importance to be rather “symbolic” than anything. They considered that by offering the exonerees a compensation, the system was taking publicly responsibility, which would have aided to lower the stigmatization. Westervelt and Cook (2010, p.260) have considered the exonerated to be “victims of state harm” on the basis of a six points framework (these can also be thought about socially disadvantaged parolees, in my opinion) :

(i) The exonerated are usually not socially powerful

(ii) The exonerated usually fail to grasp the help that can be provided through institutional policies

(iii) The exonerated are usually blamed for being victims of injustice

(iv) The exonerated tend to rely on the civil movements to redress their situation (v) The exonerated tend to be easy victims of the system - post-release surveillance (vi) There are illegal practices set in place to achieve institutional goals

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By taking these into consideration one can realise that the need for a compensatory scheme is not only mandatory, but it also transcends the financial aspect. The Innocence Project, as mentioned, has designed a “model” compensatory scheme that is fitted for the US. It considers that an exonerated individual should receive $50.000/ year to which $50.000/ year can be added if these years were spent on the death row, plus other $25.000/ year when on parole or as a registered sex offender (The Innocence Project, 2009, table 4). They also propose other type of aid, additionally to the financial help: child support, mental and physical health care, educational support, etc. (ibid.). What is also important to note is that it is suggested that these compensatory schemes should not be taxable and they do not depend on the type of offence for which they have been convicted (Norris, 2012).

In the US, there were heated debates about the size of compensatory schemes or their existence per se. In the UK, on the other side, the compensatory schemes are not in the public eye. There was increased attention right before 2006 when the system underwent a reform and it went from discretionary compensatory schemes to statutory compensatory schemes, on the grounds that the former have been too demanding for the public budget and, arguably, not feasible (Falsely Accused UK). Keeping in mind that the UK is a signatory state of the UN International Covenant on Civil and Political Rights, prior to 2006, the discretionary compensation scheme was criticised on the grounds that it was not in line with art. 14 (6) of ICCPR, as it does not reflect the ‘spirit and purpose’ of it (R v Secretary for the Home Department). Another name for the discretionary scheme is ex gratia, which is used in some research papers (Lyne, 2010) whereas in others (‘Compensation for Wrongful Conviction’, 2014; ‘Monetary compensation and beyon’, n.d., etc.) is used the term “discretionary”, while in Lipscombe & Beard (2015), the official document released by the Home Office, uses both name which might give the false impression that there are two different schemes. Henceforth, the names in this paper can be used interchangeably, but they mean the same thing.

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Another problem with the discretionary scheme was that the Home Secretary was not obliged to accept the assessment of the independent persons who were in charge to calculate the amount of the compensation, so they could have refused to pay the compensation without any apparent reason (Layne, 2010). In the case R v Secretary of State for the Home Department, ex parte Harrison (1988) the Home Secretary has refused to pay the compensation based on reasons that have not been disclosed to the exonerated (Layne, 2010, p.8). On the other side, the given motive for changing the legislation and have only one compensatory scheme, the statutory compensation scheme, was the fact that it was too costly for the public budget. Lord Falconer of Thoroton has published the amount of compensations paid from the public budget for the years 1997-2002, which can be seen in the following figure (Falsely Accused UK, n.d).

Figure 1 – created by the author with the data from Falsely Accused UK, n.d

As it can be seen, each year, more than £5 million were paid from the public purse. At that time, in 2002, from 1999, 91 claims for compensations did not even go through the system, meaning that they were still waiting for their compensation to be awarded (Falsely Accused UK, n.d). These amounts,

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paid from the public purse, were considered unusually high. Hence, in 2006, these two schemes were scrapped and replaced with the statutory scheme. At large, the novelties of the statutory scheme are the following:

1. Limiting the time to only those cases that have been quashed after the usual time limit for appealing (usually 28 days, but can be extended) (Section 133 of Criminal Justice Act 1988, subsection 1)

2. Giving a definition to “miscarriage of justice” - the inmate has to have his conviction quashed on the grounds of new information which proves beyond “reasonable doubt” that there has been a CJS mistake (section 175, Anti-social Behaviour, Crime and Policing Act, 2014).

3. Capped the amount payable to 1 million pounds in cases in which the applicant has been imprisoned for at least ten years and 500,000 pounds in all other cases.

4. The actual amount of compensations, below the cap, is assessed by an independent official who has to look at the seriousness of the offence and the severity of the punishment and the conduct of investigation and the prosecution of the offence, but also can deduct on the basis of the conduct of the applicant that might have directly or indirectly contributed to the appealed conviction or any other conviction of the applicant (section 133A of the 1998 Act). Hence, without deductions, per year, the compensations are 1.5 times the median annual gross earnings calculated on the basis of the statistics offered by the Office of National Statistics (Lipscombe & Beard, 2015, p.8).

A complete content analysis of the differences between the compensatory schemes and whether or not their effect was accomplished is further developed in the empirical analysis chapter.

Largely, the main wanted effect of the 2006 reform was to diminish the cost for the public purse, probably at the expense of the victims of the system. The issue with connecting the dots between these two variables is that there is no settled methodology to do so. There is little to no research carried out on the topic, which includes, inter alia, the

content analysis

conducted by Norris (2012),

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but only on the US compensatory schemes, the cross-country comparison conducted by the New Zealand Law Commission (1998), the survey analysis on the perception about the extent of the compensatory schemes conducted by Karaffa et al. (2015), the quantitative analysis conducted by Layne (2010) on the amount paid for compensations for 29 applicants (1905 - 2007), the qualitative assessment of the ex-gratia scheme by Taylor (2003) and also the assessment of the system overall by Huff et Killias (2008).Although rich in information, all these analyses fail to completely and coherently account for the issue at stake.Hence, trying to establish a comprehensive methodology is nonetheless complicated.

Neither forensic economists nor social scientists have looked into the effect of compensation schemes on the costs of wrongful convictions or the number of exonerations (indirectly)5_{. Hence, there is little} information about the topic and rather no economic guidance for the calculation of these costs, meaning that it leaves the analysis to the discretion of the researcher (Baum, 2016). In UK or Europe altogether, arguably, there is no research conducted on the topic after 2007. In the US, the researchers have paid more attention towards it and there is some extensive quantitative analyses on the costs of wrongful convictions per se (Silbert et al., 2015; Murphy & Grissom, 2011; NIJ, n.d) but they are rather topical. Some of the findings of these analyses were, inter alia, connected to the compensation schemes. More specific, to the lack of compensation schemes or to the differences that there are among them in different counties in the US (Norris, 2012). Thus, the theoretical background of analysing the costs paid from the public budget is grounded in the forensic economic theory of costs of wrongful convictions, set by the National Association of Forensic Economics (NAFE) and then further developed by Silbert et al., (2015), Norris (2012), WSIPP (2017), Murphy and Grissom (2011) and most importantly, by the Innocent Project. The practicalities of these are developed in the following chapter, the methodology.

5_{Different compensatory schemes might indirectly lead to a difference in the number of exonerations if the exoneration} per se is the sole requirement to be entitled to receive a compensation.

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Lastly, the scope of this chapter was to analyse what is already known from the relevant research and literature so one can draw conclusions and formulate hypotheses that are tested through the empirical analysis. Hence, the main hypotheses, as explained in the introduction are:

o The statutory compensation scheme (the compensatory system after 2006) has a positive effect on the public costs for exonerations

o The discretionary compensation scheme (the compensatory system before 2006) has a negative effect on the public costs for exonerations

o The statutory compensation scheme affects positively the detention expenditure The following chapters will analyse these, starting with establishing a reliable methodology.

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Methodology

“Far too often, to be charged with a crime is to become something less than human.” Jerome F. Buting,

To begin with, the analysis is a rough estimation of the costs of wrongful mistakes, by making use of all the available information. The calculation equations which are used are formulated on the basis of the formulas defined in Silbert et al., (2015) and the statutory compensation scheme 1998Act.

The data used for calculating and estimating the effect of the compensation schemes comes from different sources. Firstly, the database of exonerations has been developed by the author, by gathering data entries from The Innocent Project international database, CCRC cases database, Falsely Accused UK database, and newspapers like The Guardian and Forbes (only some explanations of the cases, or some interviews of the defenders in which it was explained the state of the exonerees).

For calculating the costs, the data has been collected from the CACD statistics, Home Secretary Statistics, Hansard House of Lords statistics, Secretary of State for the Home Department, and most importantly, Judicial Statistics Annual Report.

To estimate the cost of wrongful convictions before and after the amendment of the compensation scheme, we have to take into account detention expenditures (EXP), trial (TRL) , appeal (APP) and attorney (ATT) costs and the size of compensation (COMP). These will be PRE and POST amendment, but also PRE and POST exoneration. It is here crucial to note that there are two main components of the costs of wrongful convictions: the costs before the exoneration, meaning the sum of the costs of imprisonment, the costs of trial, appeal, attorneys; and the costs after the exoneration which is the size of the compensation. I do not intend to look only at the size of the compensation because I believe that doing so would mean ignoring a very important part of the story – the total

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costs of wrongful conviction in relation with the 2006 reform. Hence, by ignoring the costs of the wrongful conviction per se and by only looking at the compensations, we would fail to completely account for the effect of the compensatory schemes reform on the costs of wrongful convictions which are paid by the public budget. Following, for calculating the PRE’ exoneration costs we are looking at EXP, TRL, APP, ATT, whereas for calculating the POST’ exoneration costs, we are looking at COMP.

Firstly, EXP can be divided into two categories, as mentioned in the introduction:

1. Operating costs - cost of service, maintenance, personnel, food, supplies, medical care, clothing. These are dependent on the number of inmates and are relevant for the calculation formula. 2. Capital costs - construction, land purchasing. These are not dependent on the number of the

inmates and thus, it is not necessary to include them in the calculation. Also, their costs are considerably larger than the costs of the first ones, hence, it would bias the analysis and offer an overestimation of the results, which is not a wanted effect.

Hence, the equation used for calculation is:

ℷ s,t= annual spending on detention/ annual detention population, Where ℷ is an average annual cost/ inmate, s is the inmates and t is the year. Thus, the total EXP costs are ⅀ ℷs,t.

The annual spending on detention can be calculated as well by using the following formula, in case there is no data for one particular year:

∆Prison = ∆#$% × Prison&'(% #$% × Prison)*+,*-+ % + ∆#$. × Prison&'(. #$. ×

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For the cost of trial and appeal, Silbert et al., (2015) use a differentiation between superior court, district attorney and public defender. In this case, we have to focus only on the Superior Court because it is the only channel that can lead to an exoneration. The public defenders can only help pro bono to find new evidence that can prove that the inmates have been wrongfully convicted (Innocence Project UK). Hence, the costs will be calculated only by looking at the CACD costs (Court of Appeal). First we have to look at the preparation time needed for the appeals, and then at the costs of courts that are published by the CACD.

Hence, assuming that there is a difference in the time for those cases that go to trial and those that do not go to trial, we can formulate the following equation:

µ= pR + (1-p)

Where µ is our interest, the time of trial, defined by the relation between the proportion (p) of same type cases that go to trial, the ratio of court time for a case with trial vs without trial when the offences are the same (r). Steven Raphael (2015) has developed an equation alike but focused on the US system which includes public defenders. Since it is not the case here, the equation does not account for it. The next step is to estimate the total costs of trials and appeals by multiplying µ (time) with the costs ( ψ) published by CACD for each year.

Finally, for the pre-exoneration period there will be two equations for the comparison, connected to the reform:

(PRE reform) = ⅀ ℷs, + ⅀(µ x ψ) from 2000 to 2006

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These, combined are the PRE’(exoneration) costs, meaning the costs before exonerations, which are going to be analysed in the part A of the costs. The part B of the costs will look at the second side of the coin, meaning the POST’ costs, the post exoneration costs, named the compensation costs.

Before 2006 there has been data published on the topic, which is crucial for our analysis, because, as it will be noted, the discretionary compensatory scheme which was used before 2006, was at the discretion of the Home Secretary, meaning that we do not have a proper criteria to follow in order to estimate the costs.

For the post 2006 years, I have estimated the costs of the exoneration because, as it will be seen in the analysis, the statutory scheme, although it has a calculation criteria, it is also very limited in scope. Meaning that it is expected that less cases can fall under it. Hence, based on its criteria, the POST’ costs will be estimated by:

1. Looking at the number of exonerations after 2006 (before 2006 there is data available) 2. Estimating whether or not the case could fall under the scope of the compensatory

scheme (depending on the stringency of the Court)

3. Looking at the number of years of conviction – more than ten years means that the maximum amount awarded could be 1 million pounds, whereas less than ten years diminished the maximum amount at 500,000 pounds.

4. Estimating the costs of pecuniary loss (material loss while in prison) by looking at the data published by the Office of National Statistics and calculating them by the criteria set in the compensatory scheme: 1.5 x the median annual gross earnings

5. Analysing the size of the costs before and after the 2006 reform

Finally, the last step will be corroborating the results into a complete analysis for the before and after situation in order to analyse the effect of the compensatory scheme. There could be the case that there

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are other independent variables that are affecting the dependent variable, but for this singular case analysis, including other variables like: policy change, administration change (Home Secretary change) is beyond the scope of the thesis, but their effect will be mentioned in the limitations chapter.

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Empirical Analysis

Is it not an appalling situation and should not the Home Office give urgent attention to the situation which now prevails in France and Germany, where arrangements have been made to give generous compensation to people who have been detained for long periods and ultimately acquitted? (HC Deb 02 December 1971, volume 827)

Part A. Content Analysis of the two compensatory schemes

Introductory data

Post release, the wrongfully convicted persons suffer from different issues ranging from financial to mental health and stigma. As previously stated, some individuals are released after a long period of time and at that time they might have no housing and no funds (Westervelt & Cook, 2010). Other have to rely on their parents, a fact which brings them shame and adds to their stigma, as it was stated by an exoneree from California who was forced to rely on his parents after serving almost 12 years for a crime he did not commit: “At the age of 34, I had to go back to my parents as if I was a child” (The Innocence project video, 2010).

Hence, the post-exoneration struggles have to be eased by the system, in such a way that it does not add to the difficulties encountered by them. Besides the monetary help, the compensatory schemes should entail, as provided by the Innocence Project compensatory scheme model, also other types of assistance. Norris (2012) has analysed the compensatory schemes in USA by comparing them with the model, but in the UK, it is more useful to look at the different schemes as they are and analyse them by comparing them one against the other.

As explained in the previous chapters, this part is concerned with the analysis of the two compensatory schemes, pre and post 2006. Before 2006 the compensatory system used by the UK was dubious and rather hard to comprehend, in terms of functionality and legal basis. The reform of 2006 was intended to solve the issue with the compensatory system because it was believed that the former system was draining the public purse. Hence, this part will analyse in depth how the

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compensation schemes are working, what they entail, their scope and their legal basis, in order to set up a basis for the follow-up analysis. It is crucial to know their differences in order to be able to calculate the costs closer to reality. I say closer to reality because the Home Office, the institution responsible with publishing data about the criminal justice system and not only, does not publish anything about the compensatory awards, on the basis of “confidentiality” (Telegraph UK, 2002).

Now, there is no confidentiality when it comes to the compensation schemes awarded for the victims of crimes, on the contrary, there are lengthy documents published regularly( Telegraph UK, 2002) So, why should there be a difference between what type of compensation is published when these two are so intertwined (as will be demonstrated)? Why is there a differentiation between the confidentiality of a victim of the crime and a victim of the system? And did the new compensatory system make it better for the victims (exonerated individuals), for the public budget or simply made the process of claiming compensations limited? By analysing the schemes, one can attempt to answer the last questions as well, whereas the secrecy of the Home Office with regards to the amounts paid, remains a question of concern, that, in my opinion, should get more attention.

How does the British legal system work when it comes to appeal?

Before immersing into the details of the compensatory schemes, I find it useful to explain how the legal system of the UK works. Figure 2 (University of Oxford, Law Reports, n.d.) is a visual explanation of the courts, and through which one person has to go in order to appeal the conviction/ decision of the respective court. It is a simplified scheme because in reality the system is much more complicated and the relations between the courts are much more intertwined, but for the purpose of this paper it is enough a rough explanation of the process. Furthermore, there is a differentiation between the criminal cases depending on the seriousness of the offences. The least serious offences, named ‘summary offences’ are sent to the Magistrates Court with some of the ‘either way’ offences, which are more serious, but can be trialled either in the Magistrates Court or in the Crown Court

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depending on the request of either the defendant or the magistrate (Institute for Government, n.d). The most serious offences (murder, robbery and rape) are categorised as “indicatable only” and are only trialled in the Crown courts (ibid.).

Figure 2 – The Court System in the UK (University of Oxford, Law Reports, n.d)

This differentiation is also crucial for the second part of the chapter, because most of the exoneration cases are “indictable” and they go from the Crown Court directly to the Court of Appeal which also influences the trial costs, an aspect of interest in this thesis.

Although from the above mentioned figure, the system seems straightforward, in reality it is not, and the aftermath of the exonerations is even more complicated. The following part will only be concerned with the transformation process of the compensatory schemes and their analysis. What is important to keep in mind is the fact that the miscarriage of justice or the exoneration per se has nothing to do with proving the innocence, an idea that the criminal justice system has kept through time. Hence, the aim of the system is not to prove the culpability since “failure to prove X is never proof of not-X” (Lauden, 2006, p. 93) but more to keep the process as flawless as possible. Thus, the Court of Appeal examines the conviction, the process and where it went wrong, not whether the

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defendant is guilty or not (R v Pendleton, 2001, p. 66). This is also crucial to keep in mind because it is an important factor when the Courts analyse the cases that are applying for compensation (Lipscombe & Beard, 2015).

History of the compensatory schemes

Historically, the compensatory schemes have gained attention from a legal point of view, corroborated by the fact that also the binding international and European law have drafter articles about them, setting the basis for the states. Nationally, even before the international and European treaties, the UK has had a compensatory system set in place. Even before the creation of the Court of Appeal (1907), there was the ex gratia system which functioned as a compensatory scheme, but was entirely in the hands of the Home Secretary who was taking decisions with regards to whom should receive it (eligibility) and how much (quantum) (Lyne, 2010, p. 8). Thus, the Home Secretary was free to pass his own decisions and to make differentiations between cases as he saw it fit, keeping as a rule that being the recipient of a royal pardon did not mean that the person would be entitled a compensation regardless of the seriousness of the offence or the length spent in prison (Lyne, 2010, p.8). Even inside the system, there was an air of mystery around the compensation schemes and what exactly “exceptional cases” meant. Besides having no clear legal basis one could have followed, even the definitory characteristics that were known were dubious to say the least. Hence, in 1977, the House of Commons has requested a clear definition of what an “exception case” meant, to which the response was: “a case in which there has been some misconduct or negligence on the part of the police or some other public authority” (Hansard, 1977).

The abovementioned statement does not offer complete information and it only clarifies the fact that the compensatory scheme was not consistent, had no criteria that could have been disclosed – because it did not follow one, it was entirely dependent on the Home Secretary who could have awarded or refuse to award a compensation without disclosing the apparent reasons for it (R v Secretary of State

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for the Home Department, ex parte Chubb, 1986, para. 809) while he was also supported in doing so by the judiciary (R v Secretary of State for the Home Department, ex parte Harrison, 1988, para. 86)

This demonstrates that the ex gratia scheme was under no way following the legal bases developed later on by the international and European treaties. For this reason, I find it useful to note shortly the bases set by the ICCPR and ECHR and how these have influenced the developing process of the compensatory schemes in the UK.

International and European legal bases

On 20 May 1976, the UK has ratified the International Covenant on Civil and Political Right, making the country bound to respecting article 14(6) which reads the following:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non- disclosure of the unknown fact in time is wholly or partly attributable to him. (art. 14(6) ICCPR)

Hence, since 1976, on an international level, every country signatory of the ICCPR is bound to pay compensations for the victims of the system, unless the evidence proving that they are not guilty has been not disclosed because of them (the defendant) . This means that the fault has to fall completely on the “shoulders” of the criminal justice system, which has convicted the wrong person, due to the causes that I have mentioned in the last chapter.

Still, long before that, in 1953, the UK has ratified the European Convention on Human Rights, which means that it was already bound to follow article 5(5) which reads the following:

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“Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.” ECHR, art 5(5).

Thus, these documents demonstrate that the miscarriages of justice and their effect have been something known way before the increased attention towards the cases that have erupted with the apparition of The Innocence Project and the DNA breakthrough. Still, the UK has been criticized for its compensatory design even back in the last century. In the reports to the UN Human Rights Committee in 1979 and 1985, the country was severely criticized for lacking transparency and for its compensatory scheme that was running back then (the ex-gratia scheme) and also called for a new statutory scheme which had to be administered by an independent institution (JUSTICE, 1982).

The history of the discretionary scheme

The aftermath of these reports was materialized into new comments on the topic with the intention to change the system or at least clarify it. This was done by Douglas Hurd who was the Home Secretary in that period of time, hence being entailed to change the system, as were the rest before him. In his open letter, called the 1985 Statement, he commenced himself to “pay compensations to all such persons where this is required by [the] international obligations” (HC Debates, 1985, para. 689) and follow the Assessor’s method/ advice as it was the case before the reports (ibid. para 690). After that, in R v Secretary of State for the Home Department, ex parte Garner and linked applications, 1999, para. 392, it was mentioned that:

“The [1985 Statement] sought to implement the UK’s obligations under art. 14 (6) of the International Covenant on Civil and Political Rights.”

Still, there was room left for improvement, because the 1985 Statement did not bring much change. The compensations were not binding, could have been changed by the future Home Secretaries, it did not require an independent legal instrument to assess the scheme, and it was still not transparent (Lyne, 2010). The “issue” with the British legal system is that something does not have to be statutory

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in order to be considered “law”, which is something also recognized by the European Court of Human Rights as being the “peculiarity” of the British legal system (Lyne, 2010). In broader terms, as it was a practice throughout time undergone by the Home Secretary, the discretionary or ex gratia scheme falls under the third category of laws: customary law – “traditional common rule or practice [..] an intrinsic part of the accepted and expected conduct in a community” (“Customary law and traditional knowledge”, n.d.)

Still, although binding, this phenomenon has repercussions in our case, because it took 81 years for the compensatory schemes to become statutory (ibid.) and become more transparent in the sense of the eligibility criteria.

For the discretionary scheme, the only eligibility criteria, set by the 1985 Statement mentioned that a compensation can (it is not mandatory) be paid if a person has spent years in prison and he has received a royal pardon/ has been exonerated by the Court of Appeal by an out of time appeal (meaning that it was not in the normal time period) (Lipscombe and Beard, 2015, p. 2). The second criteria would fall under the “exceptional circumstances” as mentioned above – the wrongful conviction has happened because of the police/ public authority (ibid.). What is also important to note is that Douglas Hurd has also mentioned that a compensation would not be paid if the exoneration would happen because the prosecution was not able to sustain the fact that the individual was guilty (at an appeal) (ibid.). Hence, if at the appeal the prosecution fails to bring evidence “beyond a reasonable doubt” it does not constitute a sufficient enough reason for making the individual entitled for the compensation (i.e. if the responsibility falls on the prosecutors, the individual “pays”).

After analyzing the exchange of comments between different Lords, part of the Parliament or officials, comments made public by the Parliament, I arrived at the conclusion that one of the main issues around the compensation system before the statutory scheme was put in place, was the amount and the number of cases which were exonerated and entailed to receive compensation. For instance,

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in 1971 one person has asked the number of cases allowed to get compensations during that year (which shows that the system has kept the records secret then as well) to which the answer was:

“In this period ex gratia payments were made to three convicted persons subsequently acquitted by the Court of Appeal either on appeal or following a reference to that Court under Section 17 of the Criminal Appeal Act, 1968. There were no payments to persons acquited by the court of trial.” (HC Deb 02 December 1971, vol. 827)

This exchange of comments strickes interest through the fact that although further documents made public by the Government, including the official description of the compensatory schemes (the Lipscombe & Beard, 2015, document) does not mention any previous act, this comment mentions the Criminal Appeal Act 1968, which will be used, together with the other comments mentioned above in the content analysis.

The history of the statutory scheme

Now that I have tracked the history of the ex gratia scheme as thoroughly as the space in this thesis has allowed, it is time to track the statutory scheme, after which the content analysis will play its part. Hence, as already stated, although the statutory scheme has been set out by the Criminal Justice Act 1988, Section 133 (§ 133), the scheme played a crucial role only after 2006 (Lipscombe & Beard, 2015). Hence §133 states the following:

when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (Lipscombe & Beard, 2015, p. 3).

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The words which I have highlighed are crucial because they have been at the center of attention in the cases, believing that these can help the courts “get away” with the wrongful conviction and not pay the compensation. Hence, in the Supreme Court v Adams, the Supreme Court has brought clarification with regards to the meaning of miscarriage of justice, after the cases of three appellants have been refused compensation on the grounds that their cases did not fall under “miscarriage of justice”. For a better understanding of the cases and their importance for the statutory compensation scheme, Textbox 1 offers a brief background of them.

What can be seen is the fact that although the inmates have considered their cases to fall under §133, the Court has decided in the first cases that it is not, and in the second, it took another case to finally convince the judge that indeed it was a miscarriage of justice. Hence, in Adams v Secretary of State for Justice, para. 9, there are stated four categories for which new evidence might convince the judges and quash the cases:

• Category 1: the new evidence shows clearly that the defendant is innocent

• Category 2: the new evidence is such that, had it been available at the time of the trial, the defendant would not have been convicted

Textbox 1 – Supreme Court v Adams

Adams, May 1993, convicted for the murder of Jack Royal, had his case referred to the Court of Appeal after 14 years, on the ground that his defence was incompetent and failed to use material provided by the police which could have undermined the evidence provided by the prosecutors, but, it might also have been the case that the jury might still have been convinced of Mr. Adam’s guilt.

McCartney and MacDermott, January 1979, convicted for the dual murder of Geoffrey Agate and Liam McNutty, only on the basis of their guilty plea during the interrogations with the detectives. They have had their appeal on the ground that they have only pleaded guilty because of the “ill-treatment” of the police. Initially, the judge has not considered the evidence. But in 2007, new evidence was brought that other individuals have been mistreated by the same investigators which brought an air of unease for this case as well, which ended with their exoneration.

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• Category 3: where the new evidence makes the conviction unsafe and had it been available at the time of the trial, the jury might or might not have convicted the person

• Category 4: where something has gone seriously wrong during the investigation which has resulted into the wrongful conviction (Lipscombe & Beard, 2015, p. 5).

Out of these four categories, the court has considered that only categories 1 and 2 would fall under “miscarriage of justice” whereas the other would not. Here is interesting to note, that category four is about the process rather than the culpability of the defendant, and the Court during that time considered that it is not relevant under §133, whereas nowadays the Courts, especially the CCRC, would consider that they are not interested in the culpability of the defendant but more in whether there was a solid mistake during the process of investigation (Naughton, 2012).

On 19th_{of April 2006, Charles Clarke (the then Home Secretary) has announced that the discretionary} scheme will no longer be of use through the following statement, for which I have highlighted the most important words:

I will not consider any new applications under the discretionary scheme for compensation;I will introduce time limits for all applications;[..] the assessor will take greater account of applicants' convictions when deciding the level of awards for non-pecuniary loss [...]

I shall when suitable legislative opportunity arises, bring forward legislation to:enable the assessor to make deductions from the pecuniary element of the award because of criminal convictions of the applicant;provide for an upper limit on the overall amount of compensation and as regards compensation for loss of earnings;enable the assessor to reduce an award of

compensation to zero, in exceptional cases, on account of criminal convictions and/or contributory conduct of the applicant. (Charles Clarke, HC Deb 19 April 2006 cc14-17WS)

The abovecited statement draws some crucial lines for the British compensatory system in cases of justice miscarriages. Firstly, it was decided that the ex gratia scheme will be abolished because of its

Quid pro quo? The effect of changing the compensation schemes on wrongful convictions' cost for the public budget in the United Kingdom