Man who was wrongly convicted of murder fails in legal bid for compensation

A judge in the Court of Session dismissed the petition for judicial review of a decision to refuse the application for compensation after ruling that what happened with the appeal court was “merely an example of the vindication of the rule of law, not the righting of a mistaken verdict”.

Lord McEwan heard that the petitioner, Craig McCreight, was sentenced to life imprisonment in 2002 after being found guilty of the murder of his partner Yvonne Davidson in an attack with chloroform at their home in Broxburn in 1999.

He spent some seven years in prison before being released in April 2009, after the Criminal Appeal Court unanimously found that there had been a “miscarriage of justice” following a successful “fresh evidence” appeal.

By a majority, and without giving reasons, the court refused to authorise a fresh prosecution, as it was “not in the interests of justice”.

Mr McCreight thereafter sought compensation for the years he spent in prison, under the then existing statutory and ex gratia schemes, but his application was refused and in 2013 he sought judicial review of that decision.

By agreement that refusal was reduced and the respondent, the Scottish Ministers, reconsidered the matter, but Mr McCreight was again refused compensation and that new decision resulted in the latest petition for judicial review.

Counsel for the petitioner emphasised that the present case was taken under the ex gratia scheme, where there was no need of a conviction or new evidence, nor was there any mention of miscarriage of justice.

It was argued that all that was necessary was “time spent in custody following a wrongful conviction or charge resulting from serious default or other exceptional circumstances”.

Under reference to four cases, counsel sought to show the proper way to make a decision over whether compensation should be paid.

It was submitted that there was no doubt the petitioner had spent time in custody as a result of a “wrongful conviction”, and that it had been caused by “serious default” on the part of the police or prosecution, and the fact that no new prosecution was allowed favoured the making of an award.

The respondents had “erred in law” and taken an “irrational approach” by rejecting the findings of the appeal court in quashing the conviction.

However, the respondents questioned whether the actions and conclusions of the prosecution experts before the trial amounted to “serious default”.

It was pointed out that petitioner made at least two confessions to separate people, who did not go to the police until August 2000 – meaning there was an 18-month delay before the police heard anything about chloroform and in the meantime the samples taken would be bound to degrade.

Counsel submitted that while it was important to look to what the appeal court had found and said, it could not be the case that the appeal court findings were “determinative” of what the respondents had to decide.

The judge held that the ministers were “entitled to make their own inquiries into the whole matter before deciding, at their discretion, whether any payment should be made under the ex gratia scheme”.

In a written opinion, Lord McEwan said: “I consider this to be so for a number of reasons. The matter is complicated and involved medicine, science and opinion. Even after the appeal court ruling it is clear that there was a continuing dispute over what was ‘default’ and further, whether it was ‘serious’.

“It cannot be the law that the ruling of the appeal court could be determinative of these matters, though great weight has to be accorded to what they said. In making up their collective minds the respondents have the duty to find what is established.

“The appeal court had to answer the question of whether there had been a miscarriage of justice and nothing more…The Ministers have to address a wholly different question which is, inter alia, has there been ‘serious default’. I can only interfere with that decision on traditional Wednesbury grounds.”

He added: “In the result I am clearly of the opinion that this petition cannot succeed. I do not find any merit in the petitioner’s case. There was strong and compelling evidence against him including two confessions…

“Also what has happened here with the appeal court is merely an example of the vindication of the rule of law, not the righting of a mistaken verdict.

“The cases cited to me are of course, all fact sensitive and only examples. Where serious default was found it was so egregious as to be plain… and where something was exceptional the court would ‘know it when it saw it’…

“What happened here is in neither category in my opinion and on the material before the respondent I am quite unable to say that the decision taken to refuse payment was in any way irrational.”