Super-Harsh

[Nitefly]

http://www.bbc.co.uk/news/uk-21195269

Thought this would be another good one at provoking discussion.

Poor Barry George, how harsh is that. No compensation for 8 years false imprisonment. Obviously working from headlines, but the distinction made doesn't seem to follow. If the new evidence caused his acquittal at retrial, then the jury could not have been sure (or had reasonable doubt) as to his guilt. Yet the high court said a jury still could have reasonably convicted him on the new evidence... Seems to go on pure speculation, especially as the actual jury didn't convict him so they must not have been sure.

To add salt to the wound Mr. Lawless (great name) won his case because evidence was produced that he was a compulsive liar.

It seems to me that if you are acquitted on new evidence, you should be compensated for time spent in false imprisonment. The idea that 'it could be decided the other way' seems a flimsy reasoning to forward a policy for keeping down costs from a high volume of these circumstances.

Thoughts?

 

[Nitefly]

Without commenting on this individual case I'd like to address this point. The idea that "new evidence" should lead to compensation is effectively imputing a retrospective test on the decision made and that's counter to good law in and of itself. If based on the evidence available at the time no jury could reasonably convict the defendant (i.e. their guilt was not proved beyond a reasonable doubt) yet they were convicted then by all means give them compensation. If, however, the decision regarding the defendants guilt was reasonable at the time then there should be no compensation because mistakes, while unfortunate, will happen. We are not dealing with absolute certainties here, we are dealing with a (generally very good but) fallible system.

I may not agree with the High Court here attempting to second-guess what the jurors could have done but to add in new evidence and use that as a basis for stating it was false imprisonment is somewhat shaky.

I don't follow this I'm afraid. It's not retrospective on the initial decision, it's a retrial. The whole thing is looked at again and considered in full. The question is "is the person guilty or not?", not "did we get it wrong last time?". Retrospective decisions are made all the time with regards to questions of law. When it comes to questions of fact, a retrial is obviously the right thing to do when new evidence suggests a sharp contrast to what is decided.

I also think it's a very poor idea to place the burden of mistakes, however innocent they may be, on persons that have wrongly suffered imprisonment, the worst punishment available in the UK. It would be more in the interests of justice to place the burden of these mistakes, transformed into financial terms, on the population as a whole, which would be a relatively insignificant feat.

 

[Nitefly]

Ignoring the legal process p)... is he blatantly guilty? That'd colour my view, tbh!

If he was blatantly guilty, he wouldn't have been acquitted

 

[Nitefly]

Perhaps I misunderstood your intent here but it sounded very much as if you were suggesting that new evidence could mean the initial decision was wrong based on the evidence available at the time. There's wrong in an absolute sense and wrong in an objective sense - it could be objectively a fair decision based on the information/evidence presented and yet be imprisoning an innocent person. In a retrial you're right that it's a fresh look at all the evidence - maybe I was being a bit slow in not realising that was what you meant.

I am, however, thinking more on the question of compensation. If evidence was suppressed or should otherwise have come if all parties were doing a reasonable job and that led to the conviction of an innocent party then compensation would be the minimum for equity. If the new evidence was revealed in circumstances other than that then I suppose it depends on the instant case - that's where judicial discretion would be useful.

Yes, I think you initially misunderstood me

Errors in procedure such as in the chain of custody?

Not really sure what the point in this comment is though, I was obviously referring to a jury's decision on the evidence in front of them

I agree with the court, the new test is quite specific in the way it works, and has the form it does to ensure that only people who are innocent beyond all reasonable doubt get compensation. it almost adds the scottish verdict of 'not proven' as an unofficial position following an appeal.

This strikes me as a reasonable balance between ensuring the legal system has barriers against unfair treatment of defendents, and ensuring the legal system has barriers against unfair treatment for the taxpayer.

I think that's a bad distinction. You either did it and face the consequences, or you didn't do it and should be free from any burdens. Only compensating those who you can be sure did not commit a crime is ridiculously narrow category. It seems quite clear to me that it should be all or nothing as otherwise you are essentially punishing someone on a lack of evidence.

It should not be the same burden to prove innocence as for guilt.

 

[Nitefly]

surely that depends on the context? remember that compensation is effectively punishment of the taxpayer.

Should the taxpayer be punished when there is no evidence of wrongdoing? The burden of proof for conviction is high to protect the accused, which is correct, but why should the taxpayer not be subject to the same protection when it comes to punishing them for what their representatives do in their name?

Because the tax payers as a collective are easily able to carry that burden, as opposed to one man who has already suffered 8 years imprisonment. Obviously the extent of that compensation should be capped, but to deny compensation in its entirely is pretty wacky to me.

 

[Nitefly]

Whether the taxpayer as a collective can afford it is irrelevent. The principle of fairness demands that the same tests are applied to both parties before punishment is administered.

Of course it's relevant. The concept of burdens passing to deep pockets is abundant throughout the entire English legal system, from the wide ambit of vicarious liability through to Road Traffic Act insurers (insurance in absence of policy)