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It is sometimes assumed that victims of miscarriages of justice must be entitled to compensation, particularly if they have spent time in custody before being pardoned or having their convictions quashed. However, this is not the case: compensation is the exception rather than the rule.

Until April 2006, the Government operated two compensation schemes for victims of miscarriages of justice in England and Wales: a discretionary scheme and a statutory scheme. However, the discretionary scheme has since been abolished. The statutory scheme gives the Justice Secretary discretion to pay compensation to a wrongly convicted person “when his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”.

In 2011, the Supreme Court ruled that the meaning of “miscarriage of justice” for the purposes of the statutory scheme should not be restricted to applicants who are able to conclusively demonstrate their innocence. Instead, it should be extended to cases where a new or newly discovered fact “so undermines the evidence against the defendant that no conviction could possibly be based upon it”. However, the Government has since legislated to reverse the effect of this decision; for applications made on or after 13 March 2014, there will have been a miscarriage of justice “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”.

If the Secretary of State decides that an applicant is eligible for compensation under section 133, the question of how much should be awarded is determined by an independent assessor. She can make deductions for any conduct of the applicant that contributed to the conviction, for his criminal record and for “saved living expenses”. The maximum amount of compensation payable is £1 million in cases where the applicant has been imprisoned for at least 10 years, or £500,000 in all other cases.

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