vickyWe are very pleased to feature this guest contribution from Dr Vicky Conway of QUB School of Law on compensation for miscarriages of justice. You can find out more about Vicky on the ‘Guest Contributors’ page.

The Irish Times reports today that the Minister for Justice has failed to make a determination on compensation to be paid to Nora Wall for the miscarriage of justice which occurred in her case. This brings into serious question the operation of the compensation section of the Criminal Justice Act 1993. This legislation provides individuals with recourse to the Court of Criminal Appeal where new or newly discovered facts show that there may have been a miscarriage of justice in their case. Under s.9, where the Court declares that there is has been a miscarriage of justice the individual is entitled to compensation, and they can choose either to apply to the Minister who determines the amount or to institute High Court proceedings. This brings Ireland in line with requirements under Article 3 of Protocol 7 of the European Convention on Human Rights and with similar statements in the International Covenant on Civil and Political Rights.

Sister Nora Wall was convicted in 2005 of rape (the first female in the state to be found guilty of this offence) and sentenced to life imprisonment. Six weeks after her conviction, and four days after sentencing, her conviction was quashed by the Court of Appeal and the DPP agreed to retrial when it became apparent that there had been non-disclosure of evidence in relation to one witness. Within four months the DPP announced that he would not be pursuing the retrial and supported her application to the Court of Appeal for a declaration of miscarriage of justice, which was granted later that year ([2005] IE CCA 140). One of the complainants had a history of making false complaints of assault and a key witness had been declared unreliable prior to the trial and should never have appeared in court.

A number of cases have previously been declared miscarriages of justice including that of Meleady and Grogan (the Tallaght Two) ([1995] 2 IR 517; [1997] 2 IR 249; [2001] 4 IR 16) and Frank Shortt. It appears that Meleady and Grogan have not received compensation and Mr Shortt opted to take an action in the High Court ([2005] IEHC 311; [2007] IESC 9), following on from which he was awarded €4.5million in the Supreme Court for the 27 months he spent in prison, the damage done to his business, his family and his mental and physical health. The Supreme Court also felt there should be a punitive element to the damages awarded, given that the case involved the ‘gravest dereliction of duty and abuse of power… one could imagine.’ ([2007] IESC 9 at para 10)

As yet though, the Minister has not exercised his powers under s.9 to award compensation. Yesterday in the High Court, it became clear that Ms Wall had applied for compensation but that the Minister had refused to make a decision on the matter despite acknowledging that it was a matter to be dealt with under s.9. She has been granted leave to judicially review this decision.

One anomaly which may emerge in this review is a disparity in the obligations under domestic and EHCR law. The Irish Act entitles anyone who has been convicted of an offence, which is later declared a miscarriage of justice, to compensation. The ECHR, under Article 3 of Protocol 7, provides for payment of compensation to a person who has ‘suffered punishment as a result of such conviction’. Nora Wall was on bail for the duration of her trial and served just four days of her sentence before being released again on bail. Whether the stigma of being convicted of rape, added to the trauma of the investigation of the trial would be considered punishment is not clear. Nevertheless the Minister is obliged by Irish law to award compensation. The judicial review will hopefully provide an important insight into the Ministerial understanding of these provisions.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk