Academic journal article Trends & Issues in Crime and Criminal Justice

Compensation for Wrongful Conviction

Academic journal article Trends & Issues in Crime and Criminal Justice

Compensation for Wrongful Conviction

Article excerpt

This paper examines the causes of wrongful imprisonment, the nature of losses and the applicability of international approaches and conventions. Definitions of wrongful conviction vary internationally, as do the circumstances and amount of compensation. Australian states and territories can make discretionary ex gratia payments, although determination of compensation amounts is unclear. Compensation levels for wrongful conviction in Australia are not as generous as tortious claims. The current system of ex gratia payments that exists in all Australian jurisdictions (other than the Australian Capital Territory) is arbitrary. The introduction of dedicated legislation or specific guidelines for wrongful conviction would help bring these Australian jurisdictions into line with international human rights best practice. This paper considers the scope of claims made in Australia through some key case studies. However, there is currently no reliable national data on the prevalence of wrongful convictions in Australia; overseas research suggests wrongful convictions may be less rare than we assume.

Judy Putt

General Manager, Research

Wrongfully convicted people commonly feel emotions ranging from anger and loss to paranoia and betrayal. The long-term effects have been likened to that of war veterans; many wrongfully convicted people experience ongoing psychiatric dysfunction and have long-term difficulties reintegrating into society (Grounds 2004).

Currently, most Australian jurisdictions are not generous, nor are they transparent, in awarding compensation. Many wrongfully convicted people in Australia do not get any compensation, do not get their legal fees paid for, and the reasons for decisions as to whether or how much to compensate them are never disclosed.

This paper considers the mechanisms used for compensating wrongfully convicted people in Australian jurisdictions as well as the causes of wrongful imprisonment, the nature of the loss suffered by wrongfully imprisoned people and the prevalence of wrongful conviction. It also discusses the international conventions in this area and the approaches of other national jurisdictions. The question of whether Australian jurisdictions need specific institutions to review cases to detect wrongful convictions is beyond the scope of this paper (see Gould 2004 regarding such bodies in the United States; Weathered 2007).

Defining wrongful conviction

The term 'wrongful conviction' could encompass situations where people are:

* arrested and detained but released without being charged

* detained and charged but whose charges are dropped prior to trial

* tried and acquitted but who have been remanded and denied bail

* convicted but whose conviction has been quashed on appeal (this can also be divided into people who have, or have not, been granted bail prior to trial and/or after being convicted and the conviction being overturned)

* convicted and have been sentenced a non-custodial sanction that has served/enforced prior to the appeal being heard (but whose conviction has been quashed on appeal)

* tried and convicted, have exhausted ail appeals but who later have their convictions quashed in an extraordinary appeal and no retrial ordered, or are found not guilty at such a retrial or have been pardoned (Huff 2002a; New Zealand Law Reform Commission 1998).

Arguably, ail these categories of people deserve some form of restitution. For this paper, wrongful conviction will be limited to the last category outlined above. This definition of wrongful conviction most closely approximates that adopted in the International Covenant on Civil and Political Rights (ICCPR) (see below) and the approach of most signatories to it.

The ICCPR and wrongful conviction

Article 14(6) of the ICCPR provides:

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 nondisclosure of the unknown fact in time is wholly or partly attributable to him (see Note 1). …

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