The Supreme Court rejected Victor Nealon’s final bid to obtain compensation for his wrongful conviction in its ruling on 30 January 2019, by a majority of 5:2. Short of a successful petition to the European Court of Human Rights, that is the end of the road for him and his supporters.

I don’t propose in this short post to follow the Supreme Court on its peregrination through various reported decisions of the European Court, whose rulings the majority declined to follow.  Rather, I would like to draw attention to an intriguing paper published by Frederick Lawrence in the Public Interest Law Journal in 2009, Vol. 18, 391-401. It is entitled: “Declaring Innocence: Use of Declaratory Judgments to Vindicate the Wrongly Convicted”.

He draws attention to the difficulties which a wrongly convicted person faces in obtaining redress by existing legal routes. Tort claims of malicious prosecution, or civil claims against police or prosecutors, tend to face high burdens of proof, such as having to show bad faith or displacing public immunity bars.

The Supreme Court of Canada has found that police owe a duty of care to a suspect to investigate to the standard of a reasonable police office: Hill v. Hamilton Wentworth Regional Police Services Board [2007] 3 SCR 129. It held:

A person owes a duty of care to another person if the relationship between the two discloses sufficient foreseeability and proximity to establish a prima facie duty of care.  In the very particular relationship between the police and a suspect under investigation, reasonable foreseeability is clearly made out because a negligent investigation may cause harm to the suspect.  […]  There is sufficient proximity between police officers and a particularized suspect under investigation to recognize a prima facie duty of care.  The relationship is clearly personal, close and direct.  A suspect has a critical personal interest in the conduct of an investigation.  No other tort provides an adequate remedy for negligent police investigations.

However, given the degree of operational discretion afforded the police in conducting investigations, that standard may be difficult to enforce in practice. Hill was unsuccessful, on the facts of his case.

Lawrence takes a different approach, basing his proposal on the idea of one Judge Leval, who by then was of the Court of Appeals of the Second Circuit. Leval J had proposed a low cost no-fault, no-damages lawsuit, to remedy harm to reputation caused by defamation. Such a lawsuit would be for a declaratory judgment that the allegedly defamatory statements were, in fact, false. The right to reputation is a constitutionally protected right in the US; just as Article 8 of the European Convention guarantees the right to reputation.

Lawrence argues that the stigma caused by a wrongful conviction could similarly be assuaged by a declaration of innocence from a civil court, applying the preponderance of evidence standard. The aim would not be compensation, but reparation of the harm to reputation generated by the stigma of an unfounded criminal accusation, or wrongful conviction.

Even a “not guilty” verdict is not equivalent to a positive finding of innocence. Thus:

 “A judicial declaration of innocence would be a strong and official statement that the defendant was in fact wrongly accused or convicted…..The declaratory judgment of innocence goes well beyond a statement that something went wrong with the prosecution, or that the prosecution simply failed in meeting its burden. Innocent means just that; the defendant was innocent of the charges. The declaration could be held out as proof that the plaintiff’s reputation could be held in good name.”

Further, such judgments could then be used to bind the administrators of statutory compensation schemes which award compensation to wrongly accused persons.

In the present climate of concern in the United Kingdom about the absence of effective remedies for the wrongly accused and convicted, Lawrence’s proposals merit reconsideration.