Denied Compensation After Being Wrongly Jailed For Killing Son

[*The judgment leaves unresolved the question - perhaps the most important question from a domestic court's point of view - of what may or may not be said in civil compensation proceedings arising from the same facts which had given rise to the criminal prosecution or investigation.]

Lorraine Allen a British woman has failed to secure compensation from the government despite her conviction for killing her four-month-old son being overturned by the courts. The European court of human rights in Strasbourg ruled that those acquitted of a criminal offence are not automatically entitled to compensation for a miscarriage of justice. Had Lorraine Allen won it could have affected scores of other claimants. This week Barry George, who was eventually acquitted of murdering the TV presenter Jill Dando, failed in an appeal court hearing in London to obtain compensation for his time in prison.

Allen, 43, from Scarborough, had been convicted in 2000 of the manslaughter of her son and sentenced to three years' imprisonment. The conviction was based on evidence given at her trial by expert medical witnesses who testified that her son's injuries were consistent with "shaken baby syndrome". Fresh medical evidence suggested the child's injuries could have come about in other ways. In 2005 Allen, who had by then been released from prison, succeeded in having her conviction quashed at the court of appeal on the grounds that it was unsafe. The prosecution did not apply for a retrial. Allen's claims for compensation were dismissed. Having failed in the UK courts, she appealed to Strasbourg.

The judges said that article 6.2 of the European convention on human rights, which guarantees a legal presumption of innocence, did not ensure that anyone acquitted of a criminal offence had "a right to compensation for miscarriage of justice".

The Strasbourg judges noted that the British courts "had not commented on whether the [new] evidence was indicative of her guilt or innocence. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered." They added: "The decision not to order a retrial had spared Ms Allen the stress and anxiety of undergoing another criminal trial. She had not argued that there ought to have been a retrial."
<>    Owen Bowcott, guardian.co.uk, Friday 12 July 2013

*Separate Opinion Of Judge De Gaetano

1. I agree that in this case there has been no violation of Article 6 § 2 of the Convention. However the judgment leaves unresolved the question - perhaps the most important question from a domestic court's point of view - of what may or may not be said in civil compensation proceedings arising from the same facts which had given rise to the criminal prosecution or investigation.

2. In Ashendon and Jones v. the United Kingdom (nos. 35730/07 and 4285/08, 15 December 2011) I had expressed the hope that the Court would one day reassess Article 6 § 2, particularly in the light of the difficulties our case-law has created for national courts in dealing with post-acquittal proceedings. In the instant case, however, the majority have opted for a mere compilation of cases (§ 98(e)) and the generic statements contained in §§ 101, 102 and 123.

3. To state that it all depends on whether "the national decision on compensation [contains] a statement imputing criminal liability to the respondent party" (§ 123) - which in effect means "it all depends on what you say and how you say it" - is just playing with words and most unhelpful. It is as much as saying that "whether the reasons [given in the civil judgment] gave rise to an issue under Article 6 § 2 must be viewed in the context of the proceedings as a whole and their special features" (Reeves v. Norway (dec.) no. 4248/02, 8 July 2004).

4. The reality is that in most proceedings for civil compensation following an acquittal in criminal proceedings (or, indeed, when there has been no criminal prosecution at all), for the national court to find for the plaintiff and against the defendant it must find not only that the material element (actus reus) of the offence was committed by the defendant, but that the intentional or moral element (mens rea) of that offence was also present. It is true that in the civil proceedings the standard of proof will be less strict than in criminal proceedings - on a balance of probabilities, and not beyond reasonable doubt - but that is not really saying much as far as popular perception of guilt or innocence, and therefore of the existence or otherwise of criminal liability, is concerned. This issue was very clearly highlighted in Judge Costa's dissenting opinion in Ringvold v. Norway (no. 34964/97, 11 February 2003). Indeed in that case two judges took a diametrically opposed view on the same passages of the Norwegian Supreme Court's judgment. The concurring opinion of Judge Tulkens reflects the theoretical - dare I say, academic - approach to the question of Article 6 § 2 in collateral civil proceedings, whereas the dissenting opinion of Judge Costa is a stark reminder of pragmatic reality: "[The applicant] was told that he had been acquitted of the offence with which he had been charged, but he was subsequently told (on the basis of the same facts) that it was clear that he had committed the offence, and ordered to pay compensation to the victim."

I still have difficulty in reconciling the judgment in Ringvold with the later judgment in Orr v. Norway (no. 31283/04, 15 May 2008). The present judgment in no way alleviates that difficulty. I still believe that Article 6 § 2 has no place whatsoever in civil compensation proceedings, whether following upon acquittal in criminal proceedings or where no criminal proceedings have ever been initiated.

Full judgement <>  here . . . .