What is a Miscarriage of Justice ?

Applications for compensation following a miscarriage of justice.


It would seem we use the phrase “miscarriage of justice” too freely and without its proper meaning.


If at the age of 17 you go to prison for murder, serve 7 years and are then released by the Court of Appeal once your conviction is quashed on the basis they found the verdict unsafe, it is not in law necessarily a miscarriage of justice. Similarly if you spend 17 years in prison for attempted rape before your conviction is overturned on new DNA evidence, again it’s not certain there has been a miscarriage of justice.


The controversial issue of when a person can apply and be granted compensation after a miscarriage of justice has been in the spotlight recently. The case of Sam Hallam and Victor Nealon was before the High Court in a test case, challenging the refusal by the Justice Secretary to award them compensation on the basis they did not qualify as miscarriages of justice.


The Justice Secretary will only pay compensation once a conviction has been quashed if it has been done so on the grounds that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence. Even then, if the non-disclosure of this fact proving innocence was wholly or partially attributed to that person, the condition is not met. This definition of a miscarriage of justice is contained within Section 133 of the Criminal Justice Act 1988 (as amended by the Anti Social Behaviour, Crime and Policing Act 2014.)


It is no mean feat to overturn a conviction at the Court of Appeal. Both Sam Hallam and Victor Nealon spent years fighting and the Court of Appeal had already dismissed their appeals on previous occasions. For those who are successful their cases cannot automatically be considered a miscarriage of justice. They only become miscarriages of justice for the purpose of compensation if a new fact shows they are innocent of the crime, meaning they couldn’t have committed it.


For many this is an uncomfortable position. Anyone who has attempted to appeal a conviction from the Crown Court will know how difficult the process is. The Court of Appeal overturns very few convictions and will only do so if they believe the conviction is unsafe.


Consider this


  • At trial, the prosecution had to prove a defendant’s guilt so the jury was sure (beyond all reasonable doubt). If there was any doubt the defendant had the benefit of that doubt and it was not for the defendant to prove his innocence. Therefore, lots of cases are fought and argued to simply demonstrate that the prosecution has not made the jury sure. The question of innocence and whether anyone can be sure of innocence is not actually a central feature of the Crown Court trial process.


  • If a person is convicted on the basis that the jury was sure of guilty, the Court of Appeal will only overturn it if they believe the conviction is unsafe.


  • If a person seeks compensation following a conviction being overturned because it wasn’t safe, they have to ensure that during the appeal process they have proved so that the Court of Appeal is sure (the meaning of beyond reasonable doubt) by way of a new or newly discovered fact that he or she is innocent. Only then can it be considered a miscarriage of justice (and if that person contributed to the fact not being known earlier, they are not the victim of a miscarriage of justice.)


For many laymen and indeed lawyers, the position feels uneasy and unfair. Those representing Mr. Hallam and Mr. Nealon argued that the statutory provision was not compatible with the European Convention on Human Rights and it violates the presumption of innocence. The High Court disagreed. The point may well be argued further in both the domestic and European courts.


However, despite clearly having used the term far too freely of late, it might be very difficult to restrict ourselves in its use. It would be very hard to explain to a person whose life was thrown into chaos, who was sent to prison for years before they were released for a crime they didn’t commit, that it wasn’t a miscarriage of justice (we can just whisper under our breaths – “ but just not in accordance with section 133 of the Criminal Justice act 1988”).


The reasoning for the very restrictive approach in defining what is a miscarriage of justice might simply be money. Perhaps it is a way of reducing the number of successful compensation claims and therefore reducing the overall cost of the justice system. It does however leave an unpleasant taste because what it implies is that someone can be found not guilty but it doesn’t mean they are innocent.


How to apply for compensation for a miscarriage of justice


The government has guidance on the gov.uk website to assist those seeking compensation for a conviction that has been quashed out of time (i.e. not within the statutory time limit to appeal).


Key Points:


  • The Justice secretary makes the decision.


  • The Justice Secretary applies the provisions of section 133 of the Criminal Justice Act 1988.


  • The application is made in writing to the Miscarriage of Justice Team.


 Will you qualify?


  • The application has to be made within 2 years of the conviction being reversed or the pardon being received (in exceptional circumstances the Secretary of State may direct that an application outside of the 2 years can be treated as if in time).


Has your conviction been reversed?


  • To have your conviction reversed, typically it will have been quashed    (out of time) and there is no subsequent retrial or you were acquitted on a retrial of all matters. (There are other qualifications – please see the guidance and the act).


  • The conviction has been reversed or pardoned on the ground that:
  • A new or newly discovered fact
  • Shows beyond all reasonable doubt
  • That the person did not commit the offence


  • But the above condition is not satisfied if that fact and its lack of disclosure earlier was down partly or wholly to the person applying.


  • The Justice Secretary makes the final decision as to whether the applicant qualifies.


  • If the Justice Secretary agrees an independent assessor will determine the amount to be awarded.


  • There are maximum amounts of compensation that can be awarded (maximums are not suggestive awards that each case will receive it simply means there are limits on any award of compensation) 1million for cases where a person was detained for at least 10 years, £500,000 in other cases.

For further details you can visit the following website:


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