We are testing a new beta website for gov.scot go to new site

Statutory Compensation Scheme

Under the terms of the statutory scheme, compensation may be payable when a person has been convicted of a criminal offence and subsequently had that conviction reversed or they have been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.

For the purposes of the statutory scheme, reversed should be taken to mean as referring to a conviction having been quashed or set aside:

Any case where a conviction has been quashed in judicial review proceedings will be treated as reversed for the purposes of section 133 of the Criminal Justice Act 1988.

The provisions of section 133 of the Criminal Justice Act 1988 do not limit claims to convictions which have resulted in a period in custody. Therefore, claims in respect of non-custodial convictions, eg. where there has been a wrongful disqualification from driving, may be entertained.

The main considerations which determine whether an applicant has a statutory entitlement to compensation are;

  • the ground(s) on which the appeal against conviction succeeded, or a free pardon was granted, and
  • the avenue by which the case reached the Appeal Court.

Where a conviction is quashed following an in time appeal, there is no statutory entitlement to compensation. The basis for this is that statutory compensation will not be awarded just because a person appeals his/her conviction in the normal way and the appeal is successful.

Similarly, there is no entitlement to compensation where a conviction is overturned on grounds other than because of a new or newly discovered fact (i.e. fresh evidence).

In any case referred to the Appeal Court by the SCCRC, where the conviction has subsequently been quashed and not upheld in any subsequent retrial, the successful appellant will normally be eligible for the payment of compensation (provided a claim is made) and further consideration will not normally be required, unless;

  • the grounds for allowing the appeal was due to an error by the trial judge alone and not due to any new facts; or
  • acquittal was on a point of law following a referral by the SCCRC; or
  • the delay in the appearance of the new facts was wholly or partly attributable to the convicted person.

A judicial error, such as in the judge's charge to the jury or in the proceedings themselves, does not constitute a new or newly discovered fact. Similarly, an acquittal on a point of law does not constitute a new fact, the facts having been known all along.

There is a general right to compensation where there has been a late reversal of a conviction (or pardon) on the grounds of a new or newly discovered fact.

However, if it can be established that the accused was wholly or even partially responsible for the new evidence failing to appear at the trial, then the claim will normally be rejected.

If an application does not meet the statutory requirements then it will be considered under the ex gratia scheme.