The public outpouring for Andrew Malkinson, after the quashing of his conviction for a rape for which he was imprisoned for 17 years, is now focused on how he will be compensated. Since the release of the Bridgewater Four in 1997, the state has recouped the cost of board and lodgings from the compensation given to some victims of miscarriages of justice. The innocent have paid for the pleasure of living at their majesty’s pleasure. So dignified was Malkinson’s rage against this that, almost immediately, the government announced the practice would be scrapped, so that fairness can prevail.
While this is welcome, there still remains a brutal compensation scheme. This is because of a test that was introduced in 2014, snuck into the Criminal Justice Act. Section 133 (1ZA) declares that compensation is only available if the new or newly discovered fact that led to the conviction being quashed shows “beyond reasonable doubt” that the person did not commit the offence. During the 2014 parliamentary debate about the test, the late Jack Dromey MP said: “I stress again that the essence of our argument, and that supported by all parties and crossbenchers in the other place, is that an individual is innocent until proved guilty. We see no good reason why a victim of a miscarriage of justice should suffer a ‘beyond reasonable doubt’ test.”
Dromey was ignored and, as a result, hardly any of the people who are wrongly convicted are getting compensation. From 2017 to 2022, of the 346 applications for compensation by miscarriage of justice victims, only 13 were granted – less than 4%. Innocent people who have spent many years in prison have been left on the scrapheap.
It is extremely hard to get a case to an appeal, as the system does not like to admit it has got it wrong. Back in 2012, the case of Sam Hallam, one of the youngest victims of a UK miscarriage of justice whose murder conviction was eventually quashed, made its way to the court of appeal. This followed an incredible community campaign led by Paul May (the veteran campaigner of the Birmingham Six and Bridgewater Four) and supported by the actor Ray Winstone. Hallam had spent seven years in prison for the murder of Essayas Kassahun in a gang attack in October 2004. During that time his father killed himself.
His case had similarities with Malkinson’s, as it was based on unreliable identification evidence. This was subsequently undermined by the discovery of police material that suggested a different Sam was mentioned as a potential suspect, and which had not been disclosed prior to the trial. The Criminal Cases Review Commission ordered an independent Thames Valley police report, which made serious criticism of the Metropolitan police investigation, with untold errors including the failure to interrogate Hallam’s phone. Evidence on the phone supported Hallam’s interview statement that he had not been at the scene of the murder. Fourteen people were also identified who said Hallam was not there, including the intended victim of the murder, who was right next to his friend when he was killed. There was no forensics, no CCTV, no phone evidence to place Hallam at the scene.
On the first day of Hallam’s appeal, straight after lunch, the prosecution counsel stood up and announced they no longer contested the appeal. It was a dramatic moment that I shall never forget. The whole public gallery let out a visceral roar that lasted for what felt like an age. It reflected a sense of relief across the working-class community of Hoxton that finally this injustice had come to an end.
But since the case was quashed, Hallam has not received a penny – the cruel new compensation test has denied him. Despite his years of incarceration, he has had no choice but to fight to clear his name again and to take up another legal battle. To place this further burden upon a young man and his family is inhumane. His case is joined with that of Victor Nealon, whose conviction for rape was quashed 10 years ago.
Their case has now gone all the way to the grand chamber of the European court of human rights, which is considering whether the new test offends the presumption of innocence. A full oral hearing took place in Strasbourg on 5 July, and judgment is expected next year.
The government could, of course, bring these sorry proceedings to an end and stop the suffering of Hallam, Nealon and all the failed applicants for compensation by scrapping the test. Those whose cases were clearly unsafe must be compensated, so they and their families can move on with their lives. Only then will fairness prevail.
Matt Foot is co-director of the charity and law centre APPEAL, and Sam Hallam’s appeal lawyer
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