Over-compensation by the European Court? A Proposal for Reforming Compensation Awards


In light of the Malkinson case, questions are being asked about why successful appellants in the criminal court should have to prove their innocence in a separate process to claim compensation.  This blog argues for modest reform to preserve a focus on the duty of the State to prove its case in the criminal trial itself.

The Legal Framework

The International Covenant on Civil and Political Rights 1966 establishes a right to be compensated if one’s conviction is reversed “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him (the applicant). This was given effect by section 133 of the Criminal Justice Act 1988, amended in 2014 to state that a person has suffered a miscarriage of justice “If and only if the new or newly discovered fact shows that the person did not commit the offence”.

Why Words Matter

The ECtHR concluded in Allen v United Kingdom (2013) 63 EHRR 10, that Article 6 (2) did apply to applications for compensation but that there was “no single approach” to ascertaining whether Article 6 (2) rights were infringed. In Mrs. Allen’s case, the ECtHR considered that because there was only a reasonable doubt that she had committed the offence, there had not been a true “acquittal on the merits”. Provided no-one suggested she was guilty when rejecting her compensation claim, her rights had not been infringed.

In 2020, the UK Supreme Court in R v Hallam; R v Nealon 2019 UKSC 2 ruled by a majority that section 133 of the CJA 1988 was not incompatible with the Article 6 (2) right to a fair trial and suggested Article 6 did not apply. Lord Mance critiqued the judgment in Allen, observing that the jurisdiction of the criminal courts was to determine if convictions were safe, not whether appellants were innocent. It was undesirable to create a distinction between different forms of acquittals and it was necessary to preserve clear legal reasoning.

Hallam and Nealon’s case is before the ECtHR, who will likely continue with an expansive reading of the application of Article 6, albeit the judgment in Allen suggests they accept the difference between the right to be acquitted and the right to be compensated.

The State versus the Individual

Whatever the correct legal position on the applicability of Article 6 to compensation awards, there is an opportunity for the Government to make modest reforms so that the scheme does more than compensate those who are obviously innocent and includes those who have been obviously wronged by the State. This approach would promote fairer jury trials and more scrupulous attention to the Prosecution’s duty of disclosure, without opening the floodgates to claims for compensation in all cases where there is reasonable doubt about guilt rather than proof of their innocence.

Currently, there is no provision for compensating those unable to prove that they did not commit the offence because of misconduct or negligence on the part of the police or prosecution. If the appellant is denied the opportunity to establish that they did not commit the crime because of the State’s actions, for example, police officers disposing of evidence, it is proposed that the domestic law be amended to allow limited compensation to be paid. Another proposed reform relates to the current position that an appellant, such as Hallam, could have their claim for compensation rejected if the material which might have assisted them was in their possession throughout the trial (whether they understood that to be the case or not).  Domestic legislation should reflect a modern understanding of emotional and cognitive problems faced by many defendants: an applicant’s conduct should not determine a claim for compensation but be just one aspect for consideration.

The most necessary reform is for applicants to be able to bring appeals speedily, supported by properly resourced lawyers. The less time anyone wrongly convicted spends in prison, the less likely the need for extensive compensation and, more importantly, the fairer the process.

Want to learn more?

Read:Temporary Exclusion Orders and the Right to a Fair Hearing in the UK

Read: The Polish Challenge to the ECtHR’s Authority: Can the CoE Human-Rights System Respond Convincingly to It?

Read: Righting wrongful convictions: is anguish enough?

Please note: this article was originally posted on the Oxford Human Rights Hub on August 17 2023. For more details and to find the original article, please visit :


Mary Cowe

Call: 2006

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