When I emerged blinking into the sunlight outside the court of appeal last July as a “free man”, I was also an impoverished one. I was living on universal credit, homeless and in urgent need of mental health support from clinicians who would at last recognise what I had been through in the past 20 years.
In the days after my exoneration, news stories were followed by comments from the public suggesting that I must be due a major payout from the state. Millions, they reckoned. Enough to make sure I could own a home, make up for lost time and secure the support I needed for my mental health. This week I found myself in line at the local food bank. I am so grateful to the people who so generously stocked my kitchen for the week, but given what the state owes me I should not be in this position.
There is a statutory scheme to compensate victims of miscarriages of justice in the UK. In fact, the UK has had some sort of compensation scheme for decades. But nine months after the court overturned my 2004 conviction for a stranger rape, I am still living on £363.74 a month in universal credit. I have counselling once a week from a charity because the NHS said I would have to wait five months to get help – and because I took up the offer from the charity, I have been removed from the NHS waiting list. I am no longer homeless, but that is because I was finally offered housing by the local council, paid for with housing benefit – not because the justice system recognised any duty to support me in the months after my exoneration.
I am currently paying back the state £5 a month, for what it considered an overpayment of universal credit when I left the country for more than 28 days to fulfil my long-held dream of travel. Out of what the Guardian pays me for this article, the state will claw back 55 pence in the pound. I have to attend fortnightly “job coaching” sessions for jobs I cannot do because of my mental ill-health – but if I could manage a job, I would lose the legal aid funding I need to pursue a civil claim against those responsible for what happened to me.
Don’t get me wrong. The flat from the council has made a huge difference. It’s a one-bed place in a block for people over the age of 55. It has a bell I can pull if I have a hypo (I have type 1 diabetes) and they have allowed Basil, my lawyer’s absurdly needy cocker spaniel, to stay with me as I settle in. And I am getting to know my neighbours. Last week, I was asked to help an elderly lady with her shopping. You can imagine how that felt, given the lens through which I have been viewed for the past two decades.
Attention is rightly being paid to what led to me being wrongfully convicted – including a public inquiry. But attention should also be paid to what anyone who is wrongfully convicted faces upon release. And that is a “compensation” regime that was designed by people who simply could not believe our justice system could convict the completely innocent. (I use scare quotes as I can’t be “compensated” – how much would you have to be paid to do 17 and a half years in prison for a sex offence you were wrongly convicted of?)
I acknowledge that I can be paranoid. If you have been sent to prison for a crime you did not commit, every time you encounter a barrier to what you are seeking, it feels personal. What I am seeking is an understanding of who is responsible for my conviction, and for perpetuating it for almost 20 years. I am also seeking funds to support me in living out the rest of my life as a person who is at the same time very angry and very vulnerable – and clueless about the modern world after 17 and a half years in a box.
At the moment, I am encountering nothing but barriers. This is because the lawmakers who redesigned the “compensation” system in 2014 did so as if they were labouring under the delusion that the state was somehow being consistently ripped off by prisoners whose convictions had been quashed.
So they put up barriers that I was determined to challenge before I applied. These obstacles included deductions from any award to cover your board and lodging in prison (this has now been repealed, thanks to the public outrage when it emerged that I would have to pay back my kidnappers after I was released); and a choice between an interim payment now or being allowed legal aid to sue the police later (which the government says it will repeal later this year after I raised it last year). I asked the MoJ to raise the £1m cap on compensation, which has not increased with inflation since it was first introduced in December 2008, but it has so far refused. I have to hope it will reconsider this decision when my application is ready.
But worst of all, in order to receive any payment under the scheme, it is not enough to have your conviction quashed; you have to prove your innocence. Again. This is an affront to the presumption of innocence. In the past eight years, fewer than 7% of miscarriage of justice victims who have applied for the statutory compensation scheme since this requirement was brought in have been successful. In other words, more than 93% are denied compensation.
It feels as though the lawmakers at work here are more paranoid than I am. The court of appeal can only overturn a conviction when it finds it to be unsafe. My experience is that this is a very high standard. If the Crown Prosecution Service thinks a person is guilty after winning an appeal, it can seek to retry them. Lawmakers’ fears of the odd undeserving case slipping through means the rest of us are left empty-handed.
So, after 20 years trapped in the criminal justice system’s fantasy that I was guilty, I am now trapped in parliamentarians’ paranoia that swathes of the people whose convictions are quashed might be guilty. When I stood on the steps of the court of appeal last July, I thought I was finally out of the legal maze. It turns out I was just standing at the entrance to the next one.
Andrew Malkinson is a former prisoner rebuilding his life after he was wrongfully convicted in 2004 of a stranger rape in the Greater Manchester area
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