Pardon and Amnesty – when is there money in it?

16 May 2011 by

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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  1. […] The question before the South African Constitutional Court was whether a person convicted of murder but granted amnesty (in the mid-90s) can now be called a ‘criminal’ and a ‘murderer’. The judgment came after a former police chief Robert McBride sued The Citizen newspaper for calling him a murderer though he had been granted amnesty by the Truth and Reconciliation Commission for his role in planting a bomb in Magoo’s bar in Durban in 1986. The High Court and Supreme Court ruled that amnesty wipes out a conviction, making it as if the murder never occurred, and therefore that people should not call McBride a murderer. But the Constitutional Court overturned this, as it considered that amnesty did not erase the fact that McBride had indeed committed murder. (See an interesting legal analysis by Rosalind English in UK Human Rights Blog). […]

  2. ObiterJ says:

    Law Think – thank you for the comment and the searching question within it !!

    I was aware of the differing views expressed in Mullen by Lords Steyn and Bingham. Of course, Mullen was an “abuse of process” type case.

    I also noted the points expressed by Lord Phillips in the Adams case where he essentially concludes that the parliamentary debates and the travaux preparatoires were inconclusive.

    It is of course right to note that the defeated Israeli amendment would have limited the matter to “innocence” but it is also important to note that 33 States voted and 40 abstained on this. (Of the 33, 22 voted against the amendment).

    It would appear that the delegates wished to leave the exact definition of “miscarriage of justice” to signatory States. All appeared to agree on “innocence” but agreed on nothing beyond that. If this view is right – (I cannot be sure) – then there can be no definition applicable to all signatory States if one tries to extend things beyond “innocence.”

    It is for that reason that I prefer the minority view in Adams. Just my opjnion of course and I acknowledge that I am taking a restrictive view of the travaux !

    It is a pity that Earl Ferrers did not obtain a proper answer to Lord Hutchinson’s question. It might have helped enormously.

    With regard to public opinion, I did not take Lord Brown to be referring to the tabloids who purport to represent the views of the people. I understood him to mean our old-friend the reasonable man on the Clapham omnibus. Maybe his Lordship did not mean this hypothetical creature beloved of English law but I seriously doubt that his Lordship meant some of the opinion in certain tabloids.

  3. Law Think says:

    Unfortunately, I am not sure I agree with you ObiterJ on the Adams ruling. S 133 is based on the ICCPR. How do you explain away the fact that, in drafting the ICCPR provision, the drafters explicitly decided to exclude a requirement that the individual be proved innocent?

    The man on the street might well be appalled, but the man on the street seems to get appaled very quickly these days especially with regards to human rights.

  4. ObiterJ says:

    R(Adams) v Secretary of State for Justice:

    The case was concerned with the interpretation of CJA 1988 s133. So far as this section is concerned, the views of the minority in the Supreme Court seem to me to be the more convincing – i.e. that miscarriage of justice refers to the punishment of the truly innocent. Of course, injustice can extend well beyond such unsound convictions but the Act was not about compensating people for all that might go wrong in the criminal justice process. The views of Lord Brown are cogent – “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.”

    The Supreme Court will rightly claim that they were interpreting s.133 but, in practical effect, they have rewritten the legislation so that s.133 can now be read as:

    Compensation for miscarriages of justice.(1) Subject to subsection (2) below, when a person has 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 so undermines the evidence against the defendant that no conviction could possibly be based on it … , etc.

    Some will see that as the Supreme Court becoming more akin to legislators than interpreters. There is a fine line. For me, the court has not “legislated” but it looks quite close but that appearance may be because of the way the majority chose to express itself by offering a test with quite specific wording.


    The McBride case in South Africa is very interesting. The SA Constitution Chapter 2 (Bill of Rights) Section 16 gives very strong protection for freedom of speech and the rights of the media. The exceptions to freedom of speech appear to be quite limited in scope.

    The other side to this matter is that the Truth and Reconciliation Commission (TRC) was a very interesting and very different way of trying to bring about a peaceful transition from apartheid to a new regime. It had to address human rights violations over a period exceeding 30 years; it tried to restore the dignity of victims; and it dealt with the difficult problem of amnesty.

    The TRC was not without its critics – e.g. the family of Steve Biko – the anti-apartheid activist. Many critics felt that the Commission tended to favour those guilty of violence.

    What was the status of those granted amnesty by the Commission. If their past “sins” – could be raised against them for ever more then what would have been the point of the TRC in the first place? Here, it is important to note that to gain an amnesty a person had to admit the matter and give full disclosure – thus it is clear that they were guilty of something.

    The practical difficulty with Mc Bride’s case lies in the nature of the position he was seeking – i.e. as a senior Police Officer. Despite the TRC amnesty, it would surely be a travesty of justice if his past could not be referred to and considered when looking at his suitability for such a post.

    However, there is much force in the view of Ngcobo CJ that the media should tell the “whole story” when publishing and that should, of course, have referred to Mc Bride appearing before the TRC and the outcome.

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