Pardon and Amnesty – when is there money in it?

16 May 2011 by Rosalind English

When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.

The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.

R(Adams) v Secretary of State for Justice presented the UK Supreme Court with the question of whether compensation for miscarriage of justice should only be payable to someone was subsequently shown conclusively to have been innocent of the offence, or whether it should be open to anyone whose conviction has been declared unsafe.

Setting aside the deep ethical complications of whether forgiveness equals contrition or whether innocence in law equals innocence in fact, the cases of Adams and McBride can be considered two prongs of the same cleft stick. They both ask to what extent statutory wording should be interpreted to give absolution from criminal liability, and what are the intended consequences for compensation in the one case and reputation in the other. What, in other words, are these instruments for? Are they an expression of social forgiveness, or a means to reintegrate exonerated criminals into society?

Miscarriage of justice and eligibility for compensation

In Adams, three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. The question of eligibility for compensation in these circumstances has long vexed the courts. Under S.133 of the 1988 Criminal Justice Act, compensation must be paid when someone has a criminal conviction overturned, or is pardoned because a new or newly discovered fact shows “beyond reasonable doubt” that there has been a miscarriage of justice. In this appeal each of the appellants had their claim refused on the ground that they had not shown that they were innocent of the original offence.

The core question before the Court was the extent to which proof of innocence was the test of entitlement to compensation. The primary object of the provision in the 1988 Act, which itself is based on the fair trial provisions in the International Covenant on Civil and Political Rights (ICCPR Article 14(6)), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime.

The problem with achieving both objects is that the quashing of a conviction does not of itself prove that the person whose conviction has been quashed did not commit the crime of which he was convicted. Thus it is not satisfactory to make the mere quashing of a conviction the trigger for the payment of compensation.

Surprisingly this nettle has only really been grasped once before, by the House of Lords seven years ago in R (Mullen) v Secretary of State for the Home Department, where the question whether the abuse of process in getting the defendant deported from Zimbabwe to trial in the UK rendered his conviction so unsafe as to qualify him for compensation for miscarriage of justice. The meaning and effect of “miscarriage of justice” in section 133 produced contradictory opinions with no authoritative decision, leaving the Supreme Court to choose between the following alternatives:

Must a person whose conviction has been reversed as the result of a new or newly discovered fact show that he was innocent (Lord Steyn’s view in Mullen) or can eligibility arise in somewhat wider circumstances (Lord Bingham’s provisional opinion in that case)?

Because of the uncertainty of the outcome in Mullen it has been possible until now for courts to avoid a final resolution of the question of what is required in order to establish entitlement to compensation under section 133 of the 1988 Act.

The majority in Adams took the view that, since courts of appeal are not called upon to say whether or not a defendant was factually innocent, it was therefore too severe to restrict the right to compensation to cases where the establishment of innocence is apparent from the court’s judgment. They came up with the following test for ‘miscarriage of justice’ for the purposes of compensation entitlement: when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it.

This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. [55]

They did not go as far as to say what Justice and other campaigning groups were pressing for – that compensation should be awarded when a new fact only might have prevented conviction.

There was a strong dissent – four out of the nine justices were against this conclusion – notably Judge LCJ, who considered that the words ‘beyond reasonable doubt’ in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]:

the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent.

And Lord Brown expressed his concern at the majority view, observing that the ordinary “man in the street’ would ‘be appalled’ at the majority interpretation of Section 133 which, in his words

would not infrequently result in the compensation of the guilty, sometimes …to the extent of hundreds of thousands of pounds. [277]

The Court considered a number of Strasbourg cases, all endorsing the general principle that it is not open to the state to undermine the effect of the acquittal, but not actually pointing the way on this particular issue. On the other hand Strasbourg has expressly recognised that civil proceedings taken by a third party – for example to obtain damages for assault out of the same facts that gave rise to the original criminal proceedings – do not infringe article 6(2) of the Convention: in Y v Norway (2003) 41 EHRR 87, the Court emphasised that, while the acquittal from criminal liability should not be disregarded in compensation proceedings, it should not preclude a civil claim by a victim against the person acquitted arising out of the same facts because of a less strict standard of proof.

But does this same principle forbid comments on the underlying facts of the case in subsequent proceedings of a different kind – such as defamation? In his dissent, Judge LCJ commented that where a defendant who has been acquitted takes proceedings for defamation because someone has questioned his innocence, “the acquittal does not create an irrebuttable presumption that the assertion cannot be justified and must be unjustifiable.” [256]

The Strasbourg Court has something to say on this matter, having ruled that one of the functions of the right to presumption of innocence in Article 6(2) is to protect an acquitted person’s reputation from statements or acts that follow an acquittal which would seem to undermine it – see Taliadorou and Stylianou v Cyprus (Application Nos 39627/05 and 39631/05) (unreported) 16 October 2008, at para 26. As Lord Philips wrily notes in Adams, this expansion of a rule intended to be part of the guarantee of a fair trial into something coming close to a principle of the law of defamation is typical of that Court’s legerdemain –

one of the more remarkable examples of the fact that the Convention is a living instrument.

The amnesty pact: truth and freedom of expression in the new South Africa

Which brings us neatly round to the South African case, which cuts deep into what Cameron J called the “charged issues” about the meaning of the legislative and social compact that ended apartheid, encapsulated in the amnesty provisions of the Reconciliation Act.

The respondent newspaper had published a series of articles referring to the appellant’s participation in the 1986 bomb attack, questioning his eligibility for public office in the police and expressing the view that he was unsuitable because he was a “criminal” and a “murderer”. McBride took defamation proceedings against the newspaper, contending that receiving amnesty meant that the label “murderer” did not apply to him. McBride was initially successful in his suit but the newspaper convinced the Constitutional Court that the case involved matters of constitutional signficance – the impact of amnesty on freedom of expression – and they appealed the findings of the court below.

As we’ve commented before on this blog the South African law of libel is sufficiently familiar to set up some illuminating signposts for some of the questions before the UK courts. Like “miscarriage of justice”, “amnesty” is not a term of art; it has no necessary meaning or intrinsic effect.

Invoking the South African Consitution’s right to freedom of expression, the newspaper challenged the finding below that the “murderer” allegation was false because the appellant had received amnesty. They maintained that calling McBride a “murderer” was a protected comment because it was based on fact. Supported by the intervention of free speech campaiging groups the newspaper argued that it would be contrary to the purpose of the Reconciliation Act to require the suppression of truth and expression.

Upholding the newspaper’s appeal, the Constitutional Court held by a majority that the Reconciliation Act did not render untrue the fact that McBride had committed murder. Nor did the amnesty prohibit frank public discussion of his act as “murderer” or description of the appellant as a “criminal”. The defence of fair comment had been made out, although Cameron J observed that the adjective “fair” was somewhat misleading:

Criticism is protected, even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true.

Distasteful though the judge may have found The Citizen’s wording, the newspaper was entitled to express views on McBride’s suitability for an important public post, and in that context should “be permitted significant leeway”. The only dissenter on this point was Justice Mogoeng Mogoeng, who found that the statements that McBride was a “criminal” and “murderer” to be malicious and part of a well-orchestrated character assassination campaign.

Welcoming this judgment as a vindication of the journalist maxim that whilst fact is sacred, comment is free, South African attorney Dario Milo observes that it

liberates the defence of fair comment in a unique setting and, in doing so, emphasises the importance of robust debate on political issues in a democracy.

Whilst neither the amnesty provisions in South Africa nor the system for granting compensation under the 1988 Justice Act in this country have anything to say about innocence as such, it is worth bearing in mind that these are mechanisms only; moral absolution lies beyond the legal benefits afforded by either statute.

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Read more:

• The South African Constitutional Court takes off the muzzle
• Defamation the South African way