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 under the ex-gratia scheme were set out in a statement by the then Secretary of State for Scotland (Malcolm Rifkind) in a Written Answer to a Parliamentary Question in January 1986 (Hansard, 23 January 1986, cols 237-8).
The Secretary of State for Scotland 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 policy on payment of ex gratia compensation for miscarriages of justice.
The 1986 Ministerial 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.
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 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.
It is important to note that 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 there are any exceptional circumstances that would merit payment of compensation.
Compensation will not be paid 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. This reflects the due process of law and as such the applicant will not be eligible for compensation.