Ex Gratia Scheme
Beyond the statutory requirement to pay compensation, an ex-gratia payment may be authorised in certain circumstances. The circumstances in which an individual may be eligible for compensation were set out in a statement by the then Secretary of State (Malcolm Rifkind) in a Written Answer to a Parliamentary Question in January 1986 (Hansard, 23 January 1986, cols 237-8). This statement is similar in its content to the one made by the then Home Secretary in November 1985 (Hansard, 29 November 1985, cols 689-90).
The Secretary of State stated that he was;
"prepared to pay compensation to people who ... have spent a period in custody following a wrongful conviction or charge, where I am satisfied that this has resulted from serious default on the part of a member of a police force or of some other public authority; and there may be exceptional circumstances that justify compensation in cases outside these categories. I will not, however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond reasonable doubt in relation to the specific charge that was brought."
On 2 September 1999, the then Deputy First Minister and Minister for Justice confirmed that the Scottish Executive would continue the Scottish Office policy on payment of ex gratia compensation for miscarriages of justice.
The 1986 statement provides for the payment of compensation where:
- it can be established that there has been serious default on the part of a member of a police force or of some other public authority resulting in a wrongful conviction or charge, or
- there are exceptional circumstances, e.g. where facts emerge at trial, or on appeal, which completely exonerate the accused person
In all instances, the applicant must have spent time in custody following the wrongful conviction or charge.
Situations of serious default can vary widely, but may include:
- fabrication of evidence
- suppression or non-disclosure of evidence
- negligence or failure to carry out a proper investigation
A finding of serious default will not, however automatically merit a payment of compensation. In all cases, consideration will be given to the circumstances of the case and whether any default was sufficiently serious.
The definition of a public authority does not include members of the judiciary. Therefore, a judicial error (e.g. misdirection by a judge) does not fall within the definition of serious default.
Therefore with applications claiming judicial error, consideration will be given to whether it has been established that the error was of such quality and so gross as to give rise to exceptional circumstances which would merit payment of compensation.
If serious default is not alleged or established, consideration will be given to whether the applicant has been completely exonerated. The complete exoneration of the applicant would be a significant factor that would point towards the existence of exceptional circumstances. Complete exoneration will arise where it can conclusively be established that the accused person did not commit the crime.
Acquittal of an offence in itself is not complete exoneration, but reflects the due process of law and as such the applicant will not be eligible for compensation.