Should Wrongly Convicted People be Compensated?

Imagine that you’re wrongly convicted of a crime and sentenced to a term of imprisonment.

After spending months, or even years, protesting your innocence while going through court proceedings, the prospect of being found guilty of a crime you did not commit would no doubt be deeply distressing.

By the time your case eventually ends up before a jury, you would probably have already lost faith in the so-called justice system.

After hearing the jury foreperson utter that dreaded word “guilty”, and standing before a judge who expresses disdain for your supposed conduct and sentences you to a lengthy term of imprisonment, you word surely feel shattered – and your feelings of betrayal, anger and resentment would likely have a long-term impact upon almost every facet of your life; including your reputation, personal relationships, future prospects, financial situation and mental health.

But then imagine that after several years in prison, you get a reprieve. New evidence has come to light clearing you of any wrongdoing and you are formally acquitted of the offence.

After all that time, anguish and the enormous damage caused, you might expect that you’re entitled to some form of apology or compensation from the justice system.

Think again.

The situation in Australia

Under Australian law, a person who is wrongly convicted of an offence does not have a legal right to compensation. While compensation is paid in very rare cases – such as the highly-publicised Lindy Chamberlain case – the vast majority of wrongly convicted people in Australia never receive any compensation, even if held in prison for years.

What is a Wrongful Conviction?

A ‘wrongful conviction’ essentially refers to the situation where a person is found guilty of a criminal offence based upon insufficient, unreliable or incredible evidence and the conviction is later overturned on the basis of a reconsideration of that evidence or due to fresh evidence becoming available.

In the United States, the Innocence Project is a group or lawyers and law students that examine cases where people have been convicted and sentenced to long periods of imprisonment or to death based upon questionable evidence. The work of the Project has already led to the exoneration of more than 300 people in the US.

The Project ran on a limited basis in Australia until its funding was cut by the Howard government.

What Does International Law Say?

Australia ratified the International Convention on Civil and Political Rights (the ICCPR) in 1980.

Article 14(6) of that Convention states that:

“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 non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Article makes it clear that those who are wrongfully convicted should normally be entitled to compensation.

However, Australia has made reservations to this Convention which effectively removes the right to compensation for wrongly conviction people. Rather, those who are wrongly convicted must true to take civil proceedings (ie sue) for the wrong they have suffered; for example through the tort of “false imprisonment”.

But suing the government is immensely time-consuming and expensive – and is often out-of-the question for those whose finances have been drained through paying criminal defence lawyers and trying to keep their family supported. This means that, in practical terms, those who are wrongly convicted in Australia often have little recourse, despite the immense suffering that they have undergone.

Pursuing Compensation in Australia

While there is no federal right to compensation, governments may choose to make a compensation payment of their own accord, or at the request of a wrongly convicted person. However, there are no publically available guidelines about how a compensation payout is determined, or what needs to be proved in order to obtain compensation. And importantly, if a decision is made not to award compensation, that decision cannot be appealed.

As stated, a wrongfully convicted person might consider pursuing a civil claim for false imprisonment, or even assault if they have been subjected to attacks within prison. False imprisonment refers to situations where a person is unlawfully deprived of their physical liberty. However, a 2008 paper published by the Australian Institute of Criminology found that these types of cases can be “very difficult to prove”, and that even “compelling cases of wrongful conviction” may not result in civil damages being paid to a person.

The Right to Compensation in Other Countries

Claiming compensation for a wrongful conviction in some other countries is much easier.

The USA

Several of the United States have compensation schemes for those who are wrongfully convicted.

In Washington, those who are exonerated can claim up to $50,000 for every year spent in prison. Other states are less generous – Louisiana caps compensation at $250,000 while New Hampshire only allows $20,000.

These sums may seem like “too little, too late”, but they are certainly better than nothing at all and can help those who are wrongfully convicted to try and rebuild their lives.

Those who have spent many years in prison may become institutionalised, and may find it excruciatingly difficult to integrate back into society. They may have been deprived of education and career options, and may have developed mental health problems during their time in prison.

Those who are wrongfully convicted may also suffer irreparable damage to their reputation which can make it even more difficult to reintegrate. Although money can’t fix a damaged reputation, it can go some way towards getting making life a little easier.

Compensation payouts can also provide emotional relief. Though they fall short of an apology, they indicate a willingness by the government to accept fault and make amends.

The UK

In the United Kingdom, those who are wrongfully convicted in the United Kingdom may obtain compensation by applying to the Secretary of State, who determines whether or not compensation should be paid according to specified criteria. If compensation is approved, an assessor will then determine how much money is payable.

New Zealand

While there is no specific right to compensation in New Zealand, there are publically available guidelines as to when and how much compensation should be paid to wrongfully convicted persons.

In that country, a Queen’s Counsel is tasked with determining if and how much compensation should be paid. This is more transparent than the in most parts of Australia, where the determination of compensation has been criticised as “arbitrary” and “unclear”.

The ACT

The Australian Capital Territory is the only Australian jurisdiction to incorporate a right to compensation for a wrongful conviction.

The right is set out in section 23 of the Human Rights Act 2004 (ACT), and provides for a person to be compensated where they have:

• Been convicted of a criminal offence by a final decision of a court, and
• Suffered punishment because of a conviction, and
• Had the conviction reversed or pardoned because of a new fact which shows that there has been a miscarriage of justice

However, the law remains unclear as to how the amount of compensation is determined, or who bears the responsibility of determining them.

The state of the law in other Australian jurisdictions remains unclear and unsatisfactory compared to the laws of other countries, which generally provide specific guidelines for calculating compensation for those who are wrongfully convicted.

Australia is lagging behind other parts of the world both in terms of providing the necessary resources and mechanisms for those who have been convicted based upon unreliable evidence to have their cases re-determined (eg through Innocence Project funding), and in terms of compensating those who are found to have been wrongfully convicted.

It seems that here, the government couldn’t care less about the rights of innocent defendants.