Search Legislation

Criminal Justice Act 1988

What Version

 Help about what version

Advanced Features

 Help about advanced features

Changes to legislation:

There are currently no known outstanding effects for the Criminal Justice Act 1988, Cross Heading: Miscarriages of justice. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

Miscarriages of justiceE+W+S+N.I.

133 Compensation for miscarriages of justice.E+W+N.I.

(1)Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently 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, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

[F1(1ZA)For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).]

(2)No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State

[F2before the end of the period of 2 years beginning with the date on which the conviction of the person concerned is reversed or he is pardoned.

(2A)But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.]

(3)The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4)If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

[F3(4A)Section 133A applies in relation to the assessment of the amount of the compensation.]

(5)In this section “reversed” shall be construed as referring to a conviction having been quashed—

(a)on an appeal out of time; or

(b)on a reference—

F4 [( i )under the Criminal Appeal Act 1995; or]

[F5(ii)under section 194B of the Criminal Procedure (Scotland) Act 1995 (c. 46);]

F6(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F7or

(c)on an appeal under section 7 of the Terrorism Act 2000][F8 or

F9( d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .][F10; or

(f)on an appeal under Schedule 3 to the Terrorism Prevention and Investigation Measures Act 2011.] [F11or

(g)on an appeal under Schedule 4 to the Counter-Terrorism and Security Act 2015.]

[F12(5A)But in a case where—

(a)a person's conviction for an offence is quashed on an appeal out of time, and

(b)the person is to be subject to a retrial,

the conviction is not to be treated for the purposes of this section as “ reversed ” unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial.

(5B)In subsection (5A) above any reference to a retrial includes a reference to proceedings held following the remission of a matter to a magistrates' court by the Crown Court under section 48(2)(b) of the [F13Senior Courts Act 1981].]

(6)For the purposes of this section [F14and section 133A] a person suffers punishment as a result of a conviction when sentence is passed on him for the offence of which he was convicted.

[F15(6A)Subject to what follows, in the application of this section in relation to a person (“P”) convicted in Northern Ireland of a criminal offence, in subsections (1) to (4) any reference to the Secretary of State is to be read as a reference to the Department of Justice in Northern Ireland.

(6B)If P is pardoned, subsection (6A) applies only if the pardon is a devolved pardon.

(6C)Subsections (6D) to (6H) apply if—

(a)P’s conviction is reversed or P is given a devolved pardon,

(b)an application for compensation is made in relation to P’s conviction,

(c)the application is made before the end of the period mentioned in subsection (2) or, if it is made after the end of that period, the Department of Justice gives a direction under subsection (2A), and

(d)the Department of Justice has reason to believe that protected information may be relevant to the application (for example, because the court which quashed P’s conviction did not make public (in whole or in part) its reasons for quashing P’s conviction).

(6D)The Department of Justice must refer the application to the Secretary of State who must then take a view as to whether or not any protected information is relevant to the application.

(6E)If the Secretary of State takes the view that no protected information is relevant to the application, the Secretary of State must refer the application back to the Department of Justice to be dealt with by the Department accordingly.

(6F)If the Secretary of State takes the view that protected information is relevant to the application, the Secretary of State must refer the application back to the Department of Justice to be dealt with by the Department accordingly unless the Secretary of State is also of the view that, on the grounds of national security, it is not feasible for the Department (including any assessor appointed by the Department) to be provided with either—

(a)the protected information, or

(b)a summary of the protected information that is sufficiently detailed to enable the Department (including any assessor) to deal properly with the application.

(6G)If the Secretary of State refers the application back to the Department of Justice under subsection (6F), the Secretary of State must provide the Department with either—

(a)the protected information, or

(b)a summary of the protected information that appears to the Secretary of State to be sufficiently detailed to enable the Department (including any assessor) to deal properly with the application.

(6H)If the Secretary of State is not required to refer the application back to the Department of Justice—

(a)subsections (3) and (4) apply to the application ignoring subsection (6A), and

(b)any compensation payable on the application is payable by the Secretary of State.

(6I)In this section “protected information” means information the disclosure of which may be against the interests of national security.

(6J)In this section “devolved pardon” means—

(a)a pardon given after the coming into force of the Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010 in the exercise of powers under section 23(2) of the Northern Ireland Act 1998;

(b)a pardon given before the coming into force of that Order which, had it been given after the coming into force of that Order, would have had to have been given in the exercise of powers under section 23(2) of the 1998 Act (ignoring article 25(2) of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010).

(6K)The pardons covered by subsection (6J)(a) include pardons given in reliance on article 25(2) of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010.]

(7)Schedule 12 shall have effect.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Extent Information

E1This version of this provision extends to England, Wales and Northern Ireland only; a separate version has been created for Scotland

Amendments (Textual)

F2S. 133: s. 133(2A) and preceding words in 133(2) inserted (E.W.N.I) (1.12.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 61(3) , 153 (with Sch. 27 para. 22); S.I. 2008/2993, art. 2(1)(a)

F4S. 133(5)(b)(i) substituted (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 16(4); S.I. 1997/402, art. 3(e)

F5S. 133(5)(b)(ii) substituted (S.) (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007, (asp 6), ss. 80, 84, {Sch. 5 para. 6(1)}; S.S.I. 2007/250, art. 3(h)(i)

F6S. 133(5)(b)(iii) and the word immediately preceeding it repealed (1.1.1996) by 1995 c. 35, s. 29(2), Sch. 3; S.I. 1995/3061, art. 3(i)(vii) (and s. 133(5)(b)(iii) expressed to be repealed (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 16(4); S.I. 1997/402, art. 3(e))

F7S. 133(5)(c) and word or immediately preceding it inserted (19.2.2001) by 2000 c. 11, s. 7(8); S.I. 2001/421, art. 2

F8S. 133(5)(d) and word inserted (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), ss. 12(8), 16

F14Words in s. 133(6) inserted (E.W.N.I) (1.12.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 61(6) , 153 (with Sch. 27 para. 22); S.I. 2008/2993, art. 2(1)(a)

133 Compensation for miscarriages of justice.S

(1)Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently 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, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

[F18(1A)The Scottish Ministers may by order provide for—

(a)further circumstances in respect of which a person (or, if dead, the person's representatives) may be paid compensation for a miscarriage of justice,

(b)circumstances in respect of which a person (or, if dead, the person's representatives) may be paid compensation for wrongful detention prior to acquittal or a decision by the prosecutor to take no proceedings (or to discontinue proceedings).]

(2)No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.

[F19(2AA)Such an application requires to be made within the period of 3 years starting with—

(a)in the case of compensation under subsection (1), the date on which the conviction is reversed or (as the case may be) the person is pardoned,

(b)in the case of compensation under subsection (1A), whichever is relevant of—

(i)that date, or

(ii)the date on which the person is acquitted or the relevant decision is made known to the person.

(2AB)The Scottish Ministers may accept such an application outwith that time limit if they think it is appropriate in exceptional circumstances to do so.]

(3)The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4)If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

F20 [(4A )In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—

(a)the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

[F21(aa)the seriousness of the offence with which the person was charged or detained (but in respect of which offence the person was not convicted);]

(b)the conduct of the investigation and prosecution of the offence; and

(c)any other convictions of the person and any punishment resulting from them.]

[F22(4B)The assessor must also have particular regard to any guidance issued by the Scottish Ministers for the purposes of this section.]

(5)In this section “reversed” shall be construed as referring to a conviction having been quashed [F23(or set aside)]

(a)on an appeal out of time; F24...

(b)on a reference—

F4 [(i) under the Criminal Appeal Act 1995; F24 ... ]

[F5(ii)under section 194B of the Criminal Procedure (Scotland) Act 1995 (c. 46);]

F6(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F7or

(c) on an appeal under section 7 of the Terrorism Act 2000 ] F24 [F8 ...

F9(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .][F25; or

(e)under section 188(1)(b) of the Criminal Procedure (Scotland) Act 1995.][F10; F26...

(f)on an appeal under Schedule 3 to the Terrorism Prevention and Investigation Measures Act 2011.][F11or

(g)on an appeal under Schedule 4 to the Counter-Terrorism and Security Act 2015.]

(6)For the purposes of this section a person suffers punishment as a result of a conviction when sentence is passed on him for the offence of which he was convicted.

[F27(6A)For the purposes of this section, a person suffers punishment as a result of conviction also where (in relation to the conviction) the court imposes some other disposal including by way of—

(a)making a probation order, or

(b)discharging the person absolutely.]

(7)Schedule 12 shall have effect.

[F28(8)The power to make an order under subsection (1A) is exercisable by statutory instrument.

(9)A statutory instrument containing such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Extent Information

E2This version of this provision extends to Scotland only; a separate version has been created for England, Wales and Northern Ireland only

Amendments (Textual)

F4S. 133(5)(b)(i) substituted (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 16(4); S.I. 1997/402, art. 3(e)

F5S. 133(5)(b)(ii) substituted (S.) (23.4.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007, (asp 6), ss. 80, 84, {Sch. 5 para. 6(1)}; S.S.I. 2007/250, art. 3(h)(i)

F6S. 133(5)(b)(iii) and the word immediately preceeding it repealed (1.1.1996) by 1995 c. 35, s. 29(2), Sch. 3; S.I. 1995/3061, art. 3(i)(vii) (and s. 133(5)(b)(iii) expressed to be repealed (31.3.1997) by 1995 c. 35, s. 29(1), Sch. 2 para. 16(4); S.I. 1997/402, art. 3(e))

F7S. 133(5)(c) and word or immediately preceding it inserted (19.2.2001) by 2000 c. 11, s. 7(8); S.I. 2001/421, art. 2

F8S. 133(5)(d) and word inserted (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), ss. 12(8), 16

F20S. 133(4A) inserted (1.1.1996) by 1995 c. 35, s. 28; S.I. 1995/3061, art. 3(c)

[F16133AMiscarriages of justice: amount of compensationE+W+N.I.

(1)This section applies where an assessor is required to assess the amount of compensation payable to or in respect of a person under section 133 for a miscarriage of justice.

(2)In assessing so much of any compensation payable under section 133 as is attributable to suffering, harm to reputation or similar damage, the assessor must have regard in particular to—

(a)the seriousness of the offence of which the person was convicted and the severity of the punishment suffered as a result of the conviction, and

(b)the conduct of the investigation and prosecution of the offence.

(3)The assessor may make from the total amount of compensation that the assessor would otherwise have assessed as payable under section 133 any deduction or deductions that the assessor considers appropriate by reason of either or both of the following—

(a)any conduct of the person appearing to the assessor to have directly or indirectly caused, or contributed to, the conviction concerned; and

(b)any other convictions of the person and any punishment suffered as a result of them.

(4)If, having had regard to any matters falling within subsection (3)(a) or (b), the assessor considers that there are exceptional circumstances which justify doing so, the assessor may determine that the amount of compensation payable under section 133 is to be a nominal amount only.

(5)The total amount of compensation payable to or in respect of a person under section 133 for a particular miscarriage of justice must not exceed the overall compensation limit. That limit is—

(a)£1 million in a case to which section 133B applies, and

(b)£500,000 in any other case.

(6)The total amount of compensation payable under section 133 for a person's loss of earnings or earnings capacity in respect of any one year must not exceed the earnings compensation limit.

That limit is an amount equal to 1.5 times the median annual gross earnings according to the latest figures published by the Office of National Statistics at the time of the assessment.

(7)The Secretary of State may by order made by statutory instrument amend subsection (5) or (6) so as to alter any amount for the time being specified as the overall compensation limit or the earnings compensation limit.

(8)No order may be made under subsection (7) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

[F17(9)In relation to compensation payable by the Department of Justice in Northern Ireland, the power in subsection (7) is exercisable by the Department (and not by the Secretary of State).

(10)The power of the Department of Justice to make an order under subsection (7) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (and not by statutory instrument).

(11)No order may be made by the Department of Justice under subsection (7) unless a draft of the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly (and subsection (8) does not apply).

(12)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (11) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F17S. 133A(9)-(12) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 6 para. 3 (with arts. 28-31)

133BCases where person has been detained for at least 10 yearsE+W+N.I.

(1)For the purposes of section 133A(5) this section applies to any case where the person concerned (“P”) has been in qualifying detention for a period (or total period) of at least 10 years by the time when—

(a)the conviction is reversed, or

(b)the pardon is given,

as mentioned in section 133(1).

(2)P was “in qualifying detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—

(a)by virtue of a sentence passed in respect of the relevant offence,

(b)under mental health legislation by reason of P's conviction of that offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or

(c)as a result of P's having been remanded in custody in connection with the relevant offence or with any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.

(3)In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—

(a)in qualifying detention, and

(b)in excluded concurrent detention.

(4)P was “in excluded concurrent detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—

(a)during the term of a sentence passed in respect of an offence other than the relevant offence,

(b)under mental health legislation by reason of P's conviction of any such other offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or

(c)as a result of P's having been remanded in custody in connection with an offence for which P was subsequently convicted other than—

(i)the relevant offence, or

(ii)any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.

(5)But P was not “in excluded concurrent detention” at any time by virtue of subsection (4)(a), (b) or (c) if P's conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.

(6)In this section—

  • mental health legislation ” means—

    (a)

    Part 3 of the Mental Health Act 1983,

    (b)

    Part 3 of the Mental Health (Northern Ireland) Order 1986, or

    (c)

    the provisions of any earlier enactment corresponding to Part 3 of that Act or Part 3 of that Order;

  • the relevant offence ” means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));

  • remanded in custody ” is to be read in accordance with subsections (8) and (9);

  • reversed ” has the same meaning as in section 133 of this Act.

(7)If, as a result of the miscarriage of justice—

(a)two or more convictions are reversed, or

(b)a pardon is given in respect of two or more offences,

the relevant offence ” means any of the offences concerned.

(8) In relation to England and Wales, “ remanded in custody ” has the meaning given by section 242(2) of the Criminal Justice Act 2003, but that subsection applies for the purposes of this section as if any reference there to a provision of the Mental Health Act 1983 included a reference to any corresponding provision of any earlier enactment.

(9) In relation to Northern Ireland, “ remanded in custody ” means—

(a)remanded in or committed to custody by an order of a court, or

(b)remanded, admitted or removed to hospital under Article 42, 43, 45 or 54 of the Mental Health (Northern Ireland) Order 1986 or under any corresponding provision of any earlier enactment.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open Schedules only

The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources