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Compensation for wrongful conviction and imprisonment

Compensation for wrongful conviction and imprisonment

Introduction

There is no legal right to compensation for wrongful conviction and imprisonment.  However, the Government in its discretion can compensate someone wrongfully convicted and imprisoned by making an ex gratia payment.

Compensation under the following scheme is only payable to persons who:

(a)    are imprisoned following a wrongful conviction that is subsequently set aside;

(b)    are, at a minimum, innocent on the balance of probabilities.

 

Cabinet guidelines

Cabinet has established guidelines for deciding whether or not someone receives compensation for wrongful conviction and imprisonment and how much compensation they receive.

Eligible claimants must be imprisoned, and subsequently pardoned or convictions quashed

The Cabinet guidelines require claimants to:
• be alive at the time of application
• have served all or part of a sentence of imprisonment
• have received a free pardon or have had their convictions quashed on appeal without order of retrial.

Investigation and determination of claims

The Ministry of Justice initially assesses each claim.  Claims meriting further assessment are referred by the Minister of Justice to a Queen’s Counsel for advice. The Queen’s Counsel then reports to the Minister on the merits of the claim. If the Queen’s Counsel is satisfied that the applicant is innocent on the balance of probabilities, the Queen’s Counsel will recommend an appropriate amount of compensation in line with the guidelines. Cabinet makes the final decision on the recommendation of the Minister.

Types of compensation

The Cabinet guidelines contemplate three kinds of compensation for successful claimants:
• payments for non-pecuniary losses following conviction (for example, loss of liberty or emotional harm) – based on a starting figure of $100,000 for each year in custody
• payments for pecuniary losses following conviction (for example, loss of livelihood and future earnings)
• a public apology or statement of innocence.

Process for determining eligibility and quantum of compensation

 

The process for determining eligibility and quantum of compensation for claims within Cabinet guidelines is set out in this flow chart.

Claims outside guidelines

In making the guidelines, Cabinet reserved the discretion to pay compensation to an applicant who was not eligible in extraordinary circumstances, where it is in the interests of justice.
Non-eligible claimants include persons who have had their convictions quashed or set aside under the following circumstances:
• where a retrial is ordered by an appeal court but the trial does not proceed;
• where a retrial is ordered by an appeal court and the person is acquitted at the retrial; or
• where the conviction is quashed on a rehearing in the District Court.

Investigation and determination of claims outside guidelines

Cabinet prescribed no additional criteria or process for consideration of claims falling outside the Cabinet guidelines.  However, current practice is to ensure that, where relevant, important principles in the Cabinet guidelines are applied in a consistent manner to such claims.
Claimants outside guidelines must show, at a minimum, that they are innocent on the balance of probabilities.  They must also show that there are extraordinary circumstances that justify compensation.
Unlike claims inside the Cabinet guidelines, there is no requirement that the claim be considered by a Queen’s Counsel.  The Ministry of Justice may, however, seek a Queen’s Counsel’s assistance in relation to any or all aspects of a claim.

Types of compensation

There is no requirement to apply the Cabinet guidelines relating to calculation of compensation.  However, an approach is usually adopted that is generally consistent with the guidelines.

Process for determining eligibility and quantum of compensation

The process for determining eligibility and quantum of compensation for claims outside guidelines is set out in this flow chart.