Friday, December 05, 2014

Justice turned upside down: victims of wrongful conviction must prove innocence to get compensation

Victor Nealon spent 17 years in prison before his conviction was quashed. The Ministry of Justice is pursuing him for legal costs over his attempt to win compensation.

Victor Nealon was convicted of attempted rape in 1997 outside a nightclub in Redditch. The evidence used to secure his conviction was a disputed identity parade and a weakened alibi. His conviction was quashed last December after DNA pointed to another man as the attacker.

"I just felt lost when I got out," Nealon told the Daily Mail earlier this year.

The former postman left HMP Wakefield and was driven to Leeds railway station by the prison's deputy governor. He had nowhere to sleep and just £46 to his name. "A random amount I will never know how they got to," he said. "They also gave me a train ticket to where I wanted to go, which was Shrewsbury."

Nealon spent his first few nights of freedom in B&Bs and on friends’ floors until the Birmingham MP John Hemming offered him temporary digs above his office in Yardley.

In June the Ministry of Justice rejected Victor Nealon’s application for compensation under the Criminal Justice Act 1988, section 133. Now the Ministry of Justice is pursuing him for legal costs of £2,500 over his efforts to challenge that refusal.

Nealon, who does not have legal aid, is determined to fight on.

Nealon served an extra 10 years over and above his seven year tariff because he always claimed he didn’t do it. An analysis of DNA on the woman’s blouse, not done until 2009, was that of an unknown male, not Nealon. As the Court of Appeal noted: "Therefore, every sensible enquiry that could be made to identify a possible innocent source of the DNA has been made. It follows that the jury may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the ‘unknown male’ – and not the appellant – was the attacker."

Nealon’s solicitor Mark Newby argues that his client was badly let down by the Criminal Cases Review Commission. The watchdog reviewed the case a total of three times, the first time in 1998 and again in 2002 when it was said in relation to DNA that "the Commission does not undertake speculative tests."

Whilst the Criminal Cases Review Commission's chairman Richard Foster has apologised for the early inaction on the part of his body and West Mercia police has just re-opened the investigation into the attempted rape, Nealon has not only been refused compensation but the government is pursuing him for £2,500 for legal costs incurred over his challenge.

"It is a public scandal," Mark Newby told me. "Not only does the secretary of state want to deny Victor Nealon compensation for 17 lost years but he wants him to pay the cost of that refusal as well. Victor is determined to fight on for what is right and just."

His challenge is set to become a critical test case for the new, much restricted regime to compensate the victims of miscarriages.

New Labour came into power in 1997 the year the Criminal Cases Review Commission came into being as a result of scandals such as the wrongful conviction of the so-called Birmingham Six which had shaken the public’s faith in the criminal justice system. However the Labour government quickly came to regard alleged ‘miscarriages of justice’ as one more symptom of the US style ‘compo culture’ contagion that seemed to be spreading across the Atlantic.

In 2006, the then home secretary Charles Clarke decided, without consultation, to scrap an ex gratia scheme to compensate the victims of miscarriages. He described: "A massive industry for the legal profession that has been giving away large amounts of money to individuals who do not deserve it."

In fact, a tiny number of defence lawyers are willing to take on such difficult cases.

Professor John Spencer QC, of Cambridge University, denounced Clarke’s decision to cut the scheme as 'monstrous'. The academic paraphrased Clarke's position thus: "None of these people are really innocent – otherwise they wouldn’t have attracted the attention of the police. They’re not victims of miscarriages of justice, they’re just lucky. Too bad they didn’t get the punishment that they deserved; a good thing they had to spend at least some time in prison; and no way should we add to their undeserved good luck by handing them out compensation: except in those cases where, to our regret, our international obligations make it compulsory."

As a result of Charles Clarke’s intervention, the only people who now get compensation are those who have a statutory right under the Criminal Justice Act 1988, section 133. John Spencer damned those provisions as 'very mean' and enacted and drafted to ensure that 'so far as possible no one ever has a right to anything'.

The coalition’s Antisocial Behaviour, Crime and Policing Act which came into force earlier in the year further narrowed eligibility.

The legislation limits compensation for the victims of miscarriages to cases where a new or newly discovered fact shows "beyond reasonable doubt" that the defendant was innocent.

A briefing prepared in 2013 by Dame Ruth Runciman, chair of the miscarriages of justice support service advisory group run by the Royal Courts of Justice, ahead of the debate on section 133, considered the devastation brought to bear on the wrongly convicted. It drew on research by Dr Adrian Grounds who reviewed psychiatric assessments of 54 wrongly convicted people post-release.

"Many of the wrongfully convicted were described by friends and families as changed in personality: they had become more withdrawn, mistrustful, estranged, and difficult to live with," Dame Ruth reported.

Some had post-traumatic stress disorder, suffered nightmares and anxiety attacks.

"Longstanding and serious depression was common and some used alcohol or drugs to reduce feelings of distress. Often they found the enormity of their personal losses impossible to face and bear. In addition, some were consumed with anger and bitterness because they could not accept the legitimacy of what had happened; there had usually been no apology, and those they perceived to be at fault in the prosecution had not been brought to justice."

In the Ministry of Justice’s grounds for resisting Victor Nealon’s claim for compensation, it was asserted that the DNA analysis "plainly did not show beyond reasonable doubt that the claimant did not commit the offence."

However the Ministry of Justice also insisted that there was nothing in its conclusion that affected "the claimant’s entitlement to be presumed innocent of the offence itself. Nor is there anything in the language of the Secretary of State’s decision applying those criteria which infringes that presumption. The Secretary of State has merely applied the criteria set by Parliament governing the limited circumstances that compensation is to be paid."

In our trial system, the burden is on the Crown to show beyond reasonable doubt that the accused is guilty. "To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law," the lawyer Baroness Helena Kennedy told peers in an early 2014 in a debate in the House of Lords. "Systems go wrong. It is one measure of a society’s values that it is able to put right what has gone wrong."

Original report here

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