News that Colin Stagg, the man wrongfully accused of the 1992 murder of Rachel Nickell on Wimbledon Common, received £706,000 in Home Office compensation met with a mixed response in the media, but is all the more timely given that Barry George, wrongfully convicted of killing Jill Dando, is also awaiting compensation.
Whatever George is likely to receive, the future is bleak for the wrongfully accused after then Home Secretary Charles Clarke decided in April 2006 to introduce a £500,000 cap on wrongful conviction compensation.
In 1994, Mr Justice Ognall excluded from Stagg’s trial the ‘honey trap’ evidence of an undercover officer on the grounds of fairness, forcing the prosecution to offer no evidence.
The judgment excoriated both the prosecution and the police: the operation was “highly disingenuous”; Stagg had been “deliberately deceived”, “manipulated” and “positively and persistently tricked”; the operation was “thoroughly reprehensible”; and the stratagem “betrayed not merely an excess of zeal but a substantial attempt to incriminate a suspect by positive and deceptive conduct of the grossest kind”.
Stagg’s application for compensation was made under the ex gratia scheme introduced by Home Secretary Roy Jenkins in 1976. Under the scheme, the Justice Secretary awards compensation, without admitting liability, on the advice of an independent assessor – now Lord Brennan QC.
The assessor applies principles analogous to those governing the assessment of tortious damages. Douglas Hurd, as Home Secretary, refined the scheme in 1985 to compensate defendants who had “spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or some other public authority”.
The principal non-pecuniary element of an ex gratia award or an award under the scheme for defendants wrongfully convicted usually represents a defendant’s lost years in prison. In Stagg’s case, he spent only 13 months on remand, but it was argued that his case was unique and was the highest-profile wrongful arrest, charge and indictment of any defendant.
Lord Brennan stated: “This is a unique case. The conclusions I reach cannot conceivably provide comparison with other cases arising under this scheme.”
He also found that the criminal case comprised “a highly unusual and legally bizarre preparation of a prosecution. I am quite satisfied that [the police process] amounts to misconduct in the investigation and prosecution of this case and I categorise it as egregious.”
Lord Brennan agreed that clear analogies could not be made with traditional tortious damages. The payment included a significant non-pecuniary award (including an element for ‘aggravating’ features), plus a pecuniary award to compensate Stagg for being unable to work.
Stagg suffered untold opprobrium because of his association with this most emotive murder. He lost the opportunity of a normal family life. He had to restructure his life to avoid violence and abuse. His psychological status has not been assessed: eight psychologists refused to provide a report when approached, one admitting that association with Stagg would damage his reputation. No one will employ him or retain him on a self-employed basis. The money will help Stagg build the normal life of which he has been deprived.
The 2006 changes raise significant concerns. In future, wrongfully tried defendants may be left with no means to rebuild their lives. And where they are wrongfully convicted, they may be left under-compensated.
Ben Douglas-Jones advised Colin Stagg on his compensation claim