Satish Sekar © Satish Sekar (June 1st 2011)

Discretion and Valour

Of the seven vindication cases in Britain four of them are no longer eligible for compensation or after-care and it is too late to help a fifth, who would have qualified.[2] The abolition of the Discretionary Scheme for compensation in 2006 denies anyone whose conviction is quashed too soon eligibility for compensation. The current government endorsed that shameful decision.[3]

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” Minister of State at the Ministry of Justice, Lord (Thomas) McNally replied to a written question from Lord (John) Laird earlier this year.[4]

“We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

Scandalous

That means that some people who have been vindicated would be excluded if their cases were to happen now, but compensation is only part of the problem. There is an even bigger scandal over the provision of care or restoration.
A ludicrous error passed unnoticed nearly a decade ago. The Home Office recognised that victims of miscarriages of justice required and deserved assistance to rebuild their lives. It established a Working Group to consider the issue and establish such a scheme. It was given terms of reference and so was Peter Shore (not the former MP of that name), the Consultant that it hired to conduct a scoping study.
Shore failed to execute those terms of reference adequately and recommended a scheme that excluded the vast majority of victims of miscarriages of justice. Only Sean Hodgson is alive and eligible for the scheme operated by the MJSS, which begs the question, what use is it if it excludes the demonstrably innocent?[5]

To its shame and disgrace it failed to highlight the obvious injustice of its remit excluding among others Colin Stagg. There is plenty of shame and disgrace to go round over this and that includes mainstream media.

Plain Wrong

The term injustice is grossly inadequate to describe the suffering that Stagg and others like him went through. If he is not the victim of a miscarriage of a justice, the term has no meaning. Stagg is entitled to more than just compensation for what happened to him.
He did not ask for what happened to him to occur and is in no way responsible for the incompetence and unethical practices that ruined his life. He will always be identifiable as the suspect in the Rachel Nickell case regardless of his proven innocence.
At last he has now received apologies for what he went through, but the state has an obligation to restore him to the life that he should have had if that miscarriage of justice had not happened to him. That has not happened and the coalition government has no intention of ensuring that it does. In fact, its ministers donʼt even know its own policy.
“The Ministry of Justice funds the Miscarriage of Justice Support Service (MJSS) to help those who have had their convictions quashed by the Court of Appeal,” McNally replied to Laird. “The MJSS provides help with issues such as healthcare, accommodation, finance and relationships. The MJSSʼ funding has recently been extended for a further year to March 2012 and the Ministry of Justice is working with it to improve the support they provide.”

Disgraceful

First of all, the MJSS does not provide help to those who have had their convictions quashed on appeal – it only provides that limited assistance to a tiny minority of such people. It shamefully reneged on a commitment to help Tony Paris and Yusef Abdullahi eight years ago to protect its funding, which included their wages.
The fact remains that there are several victims of miscarriages of justice who receive no help at all from the MJSS. If McNally is unaware of this, he ought to be ashamed of himself. The MJSS had the opportunity to help and improve the so-called service it provides eight years ago. It chose to sacrifice the interests of the undeniably innocent to protect its wages, claiming it was to protect its funding.
That disgraceful decision helped to cost lives. At least three vindicated people died without living to fifty without receiving any help whatsoever from the MJSS or the Ministry of Justice. Neither can ever make amends.

Exclusion Ordered

The original defendants in the Damilola Taylor case are at least still alive, but they receive no help from the MJSS. They were children when it happened; they had criminal records and were far from angels. So what!
They did not kill Taylor and they did not ask to be wrongly accused of a crime that shocked the nation. They have been compensated now after a long and hard battle and even that is resented. Why?
Where is the anger at the shoddy investigation that secured abysmal evidence from the child witness referred to as ʻBromleyʼ? Where is the anger at the utter incompetence of Sian Hedges that resulted in the wrongful release of the Preddie brothers (Ricky and Danny)?
The outrage at the size of the award given to two brothers (not the Preddies) is totally misplaced. They deserve compensation – at least that amount, but the size of the award given to Taylorʼs family is insulting. That should be addressed by increasing the award made to Taylorʼs family, not by attacking the award made to boys who stood trial when they should not have.

Motes and Specks

Meanwhile, we allow the undeniably innocent to be treated in a fashion that shames each and every one of us. That mainstream media ignores this scandal disgraces them too. That governments of both political hues refuse to act to end this outrage betrays every concept of justice.
They go to war in foreign fields to defend human rights, yet these hypocrites tolerate and ignore the human rights abuses that they allow to occur right here in Britain. By what right do they dare to lecture others when this is how they allow people they know to be innocent beyond doubt to be treated? It appears they need considerable assistance to remove the enormous mote from their own eyes, while tackling specks in the eyes of others.

Progress

The Fitted-In Project led the way in highlighting the treatment of these victims and in one of the cases we helped fill the void caused by the betrayal of the innocent with the assistance of a remarkable advocate and champion of restorative justice, Roger Backhouse QC. He led the delivery of after-care in practice to his former client, Yusef Abdullahi, without which, shorn of help and hope, the prospect of recovery was bleak.
While Backhouse and others provided the assistance required to an undoubtedly innocent man, the government and MJSS ignored that manʼs needs and those of the majority of victims of miscarriages of justice.[6]

Even now eight years later, the government has no plans to right the wrong that allowed this shameful injustice to occur. Instead it will consult with the very organisation that betrayed the innocent to protect its funding – shameful!

The Effects of Vindication

Instead of consulting people that played no part in catering for the needs of the vindicated, even at the cost of consigning them to early graves, we call for meaningful research that will boost our understanding of a shamefully neglected group of victims of miscarriages of justice.
The psychological effects of vindication remain a mystery. The vindicated are no more innocent now than they always were. The difference is that now they are believed by all but those who refuse to see. But what about the effects on vindication? Has the very thing they craved actually damaged them?
For many years they suffered whispering campaigns, including among so-called friends and developed paranoid reactions to their own communities, wondering who believed them and who didnʼt. Friendships and other relationships broke down under the strain of the certainty they now have against their knowledge that they should have been believed and supported to the hilt earlier.

Justice Betrayed

Feeling hurt – betrayed even – by people they trusted, but whose support was not strong enough, the vindicated may need extra support, or at least understanding. That requires research and it must include the psychological effects of tariff abuse.
Some vindicated people have seen the truly guilty receive more lenient tariffs than they did. How can this be justified and what effect does it have on the mental well-being of the vindicated? There is not so much a dearth of research on this – it is virtually non-existent.
Tariff Reform and after-care, especially in relation to the vindicated, are the flagship projects of The Fitted-In Project. They even involve sport as a means to aid their recovery.
We believe that research is essential on both topics and we are conducting it, but there are areas that we cannot cover as efficiently as we would like, so we call on the Clinical Forensic and Legal Medicine Section of the Royal Society of Medicine, other organisations and individuals to join us in facilitating understanding of the psychological effects of vindication in terms of after-care needs and also tariff abuse through research. We hope that its members will research these issues, or facilitate research projects with us on these issues.
It is through knowledge that their needs can be addressed, but first they need to be understood – that is a task to be led by professionals in the field through rigorous research. It is in our opinion an essential tenet of another integrated approach – one that integrates the vindicated back into society and the life they should have had.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2]  Subsequently, a sixth who plainly was eligible has died, so it is too late for him too.

[3]  The current government has extended the attack on compensation to demand a standard that appears to demand that the wrongfully convicted must be exonerated – a standard that can prove impossible to meet unless the real perpetrator is brought to justice. Few independent observers believe that Barry George had anything to do with the murder of former gymnast and later television presenter, Jill Dando, but he has been denied compensation on the grounds of exoneration. This is grossly unfair as the criminal justice system rarely makes findings of innocence. A not guilty verdict includes both the innocent and also defendants who have not been proved guilty. The distinction is moot. Similarly convictions are quashed on appeal because they are unsafe. That includes both the innocent and appellants whose convictions were faulty. Again the distinction is moot as neither the trial nor appeal gives a finding of innocence, so how does a wrongfully accused prove that they have been exonerated and are therefore entitled to compensation?

[4] Please note that this was in 2011.

[5] That was correct when this presentation was given to a conference of medical practitioners, which included distinguished forensic pathologists.

[6]    See how we exposed this scandal in A Lack of Care at http://fittedin.org/fittedin/?p=709 and Who Cared? at http://fittedin.org/fittedin/?p=707

Abolished

The late Yusef Abdullahi would not be compensated for his ordeal despite his undoubted innocence if he had been wrongfully convicted now. The Cardiff Three (Abdullahi, Stephen Miller and Tony Paris) were compensated under the Discretionary Scheme which was abolished in 2006.

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it”, wrote the Ministry of Justice Minister Baron (Tom) McNally. “We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations”.

This leaves victims of miscarriages of justice whose convictions are quashed on a first appeal with no option but to sue for compensation. Despite the tragically early death of Mr Abdullahi the government refuses to right that wrong. His vindication by  the conviction of Jeffrey Gafoor made no difference – he still would not qualify and the government sees nothing wrong with that.

Plain Wrong

“Compensation is paid under Section 133 where a conviction is quashed at an out-of-time appeal, or following reference to the appeal court by the Criminal Cases Review Commission, on the basis that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”, Lord (Tom) McNally wrote. “Ministers decide whether an applicant is entitled to compensation under Section 133”.

In other words despite the clearest evidence of innocence possible – vindication by the conviction of the real murderer of Lynette White in the case of the Cardiff Five – it makes no difference as they would not meet the requirements of Section 133. Nor does Colin Stagg.

“For those applicants who are to receive compensation, it is then for an independent assessor to decide how much should be paid, based on claims of loss from the applicant” McNally continued. “It is open to an applicant to make a claim in relation to his or her own Article 8 rights-for example, loss of family life. Section 133 fully meets our international obligations to pay compensation in cases of miscarriages of justice”. In fact, it does not.

Absurd

If the obligations were fully met in such cases by Section 133, why had the Discretionary Scheme been introduced at all? The only logical explanation is that there were grave injustices that were not catered for under the Statutory Scheme and that it did not meet the UK government’s international obligations.

Prior to the introduction of the Discretionary Scheme in 1985 the Human Rights Committee of the United Nations (HRC) clearly believed that the Ex Gratia Scheme (Statutory Scheme) did not meet the requirements of Article 14(6) of the International Convention on Civil and Political Rights. Britain steadfastly claimed that the Ex Gratia Scheme was enough. The HRC was not convinced.

Article 14(6) says as follows: “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”.

Inadequate

Section 133 was plainly inadequate to satisfy those conditions, which became binding when Britain ratified the Covenant including Article 14(6). The wording of Paragraph 5 (a) and (b) of Section 133 are as follows: “In this section ʻreversedʼ shall be construed as referring to a conviction having been quashed— (a) on an appeal out of time; or (b) on a reference”. In other words where the Covenant did not exclude those who had won a first appeal from compensation, but S133 did and still does.

The potential for serious injustice was clear. An obvious example is the Cardiff Five. Without the Discretionary Scheme, they would not have met the requirements of S133, even though there is no doubt reasonable or otherwise about their innocence. Refusing to compensate the demonstrably innocent is unconscionable and plainly in breach of our obligations under Article 14(6).

The only thing that could be worse is forcing the innocent to prove their innocence to beyond reasonable doubt, knowing full well that the criminal justice system does not declare innocence before compensating under S133 as well. Once again Britain is breaching its international obligations to victims of miscarriages of justice.

Incomprehensible

The abolition of the Discretionary Scheme for compensation means that were a similar case to the Cardiff Five to occur now they would not be compensated unless they sue, despite being demonstrably innocent. They did not come under the Statutory Scheme. This is particularly egregious as many victims of miscarriages of justice receive no care unless it comes under their claim for compensation.

Thanks to a shocking error by the consultant hired by the Working Group, the vast majority of victims of miscarriages of justice received no help at all from the State that wronged them. Peter Shore (not to be confused with the former MP) was asked by the Working Group set up by the Home Office to consider the provision of after-care. His conclusions make it clear that he did not follow his terms of reference. As a result even the limited help provided is to be denied the victims of injustice who had the temerity to have their convictions quashed at a their first appeal..

The logic is that if a conviction is quashed on a first appeal it shows that the system is working as intended. It shows that a small area has been corrected, but still denies them even the limited after-care provided by the Miscarriages of Justice Project for victims of miscarriages of justice. Consequently, despite being proven innocent beyond doubt the Cardiff Five were denied any assistance rebuilding their lives.

Shameful

This is a shameful way to treat the victims of an easily preventable miscarriage of justice – one where there is no credible doubt about innocence. If this issue is not addressed it is inevitable that more victims will be created. And it does not end here. What about the way Lynette’s family have been treated. They were assured that the original defendants were guilty. Indeed the late Terry White reacted furiously towards the original defendants on various occasions.

Her family had to endure the certainty that the guilty were paying for their crime being taken away and then 11 years with nobody being punished for it only to find out that they had been badly misled and had hated the wrong people for years. They have yet to receive an apology for the failings of the investigation and the effect that it as had upon them. What assistance do they receive in coming to terms with what happened and the guilt of having hated the wrong people for so long?

They receive no compensation for the failings of the criminal justice system. Peggy Pesticcio in particular was forced not only to cope with the loss of her daughter, but she had to fight tenaciously to get justice for her daughter. She paid a very high price that has not been acknowledged or catered for.