Canning Case Shows Need for Fairer System of Redress

January 25, 2005

Criminal lawyers argue that compensation schemes for the wrongfully convicted are in urgent need of reform NINE years ago Paul Grecian, a Scottish businessman who used to supply defence equipment for governments worldwide, was languishing in a South African jail after having been arrested under an Interpol extradition order from the US. “I got this call from a lawyer in London,” he recalls. “I have no idea how he got hold of me. It was sheer luck because I happened to be near a phone and the guy who took the call shouted ‘Englishman, Englishman’.” The solicitor asked whether the 49-year-old Scot wanted to pursue a compensation claim from prison over his prosecution by Customs and Excise for selling military equipment to Iraq. His conviction had already been quashed after Sir Richard Scott’s arms-to-Iraq inquiry but, despite that, the American Government wanted him for allegedly breaking its export rules. That phone call marked the start of his epic fight with the Home Office for compensation. “I have just contacted my lawyers to wish them a happy new year and I asked if anything was likely to happen in 2005,” Mr Grecian says. “We are getting nowhere. It’s a fiasco.” The Court of Appeal overturned his conviction and those of other executives at his company, Ordtec, in 1995. Mr Grecian has since been revealed as a valuable MI6 informant (codenamed “Raven”) who alerted the Government to Saddam Hussein’s supergun project. As a result of the prosecution he has lost everything — “a fantastic home in the Scottish Borders, my wife, my kids and my career”. The decision this month not to pay compensation to Angela Cannings, who was wrongly imprisoned for 18 months for the murder of her two babies, has shone a bright light on the otherwise opaque workings of the schemes under which compensation payments for miscarriages of justice are made. “This a further example of the lengths the Home Office will go to avoid having to pay any money, notwithstanding that it’s their decision that ruined Angela Cannings’s life in the first place,” Mr Grecian says. Under the Criminal Justice Act 1988, Section 133, the Home Secretary pays compensation when a conviction is reversed, or pardon granted, owing to new evidence. Mr Grecian was accepted on to this scheme in 1996. Alternatively, the Home Secretary can make ex gratia payments in exceptional cases where an applicant has spent time in custody because of a serious default by a public authority. John Batt, who represents Sally Clark, the solicitor who was wrongfully convicted of murdering two of her children and who is pursuing compensation, says: “If the Cannings case isn’t exceptional, then what is? The judgment in the Court of Appeal was responsible for 28 criminal convictions being referred by the Attorney-General to the Criminal Cases Review Commission and responsible for a further 86 shaken baby convictions being put on hold.” The Home Office refuses to discuss individual cases. But compensation is rarely paid under the statutory scheme on first appeals. As for a discretionary payment, a spokesman emphasises that it is only for those who legally qualify, for example, where a police officer or other public official “is manifestly deficient”. Mrs Cannings’s conviction appears to have been set aside because of the discredited expert evidence of Professor Roy Meadow. William Bache, her solicitor, says: “It’s extraordinary but the distinction being made is between a cock-up by the police, the Crown Prosecution Service and the Home Office on the one hand and the evidence given by a private individual on the other. Surely the point is that those witnesses are looked at, assessed and called by the Crown?” There was rare illumination of another aspect of the system last year when for the first time the Court of Appeal considered how the independent assessor, Lord Brennan, QC, calculates compensation. He has previously resisted calls to explain the process on the ground that it would “turn a humanitarian exercise into a mathematical process”. The Court of Appeal judges were looking at the cases of Michael O’Brien, who was cleared of the murder of a Cardiff newsagent after spending 11 years in prison, and others. Lord Brennan ruled that there should a 25 per cent deduction for saved living expenses which they would have incurred as free men. Nogah Ofer, Mr O’Brien’s solicitor at the London firm Hickman & Rose, says that her client’s compensation does not reflect what he has been through. “They aren’t very humanitarian awards. In fact, they are pretty derisory if you compare them to what the courts give to people who’ve been in prison for shorter periods.” She is appealing the “board and lodgings” deduction. Criminal defence lawyers have long called for reform of the Home Office schemes. Lawrence Kormornick, a partner at the London firm Guy Clapham & Co who specialises in compensation cases, argues that they should be remodelled along the lines of the system used for compensating for criminal injuries. He points to inconsistencies between the schemes. For example, a period in custody is required for the ex gratia scheme but not for the statutory scheme; appeals within 28 days of conviction can be considered under the ex gratia scheme but not under the statutory scheme; and the statutory scheme requires a conviction quashed on fresh evidence, whereas the ex gratia scheme requires serious default by a public authority. Kormonick, who has dealt with the schemes for more than ten years, says that the case for reform is compelling and the Home Secretary should urgently consider consolidating them into “one clear scheme that is simple to operate and fair”.

The Times

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