Bain faces steep hurdle

Simon Power has announced:

Justice Minister Simon Power has written to the lawyers representing David Bain in response to a claim for compensation for wrongful conviction and imprisonment. …

Under Cabinet guidelines adopted in 1998, the category of claimants who are eligible for compensation is limited to those who have had their convictions quashed on appeal without order of retrial, or who have received a free pardon. To receive compensation eligible claimants must establish their innocence on the balance of probabilities.

However, at the same time as adopting those guidelines, Cabinet decided the Crown should have residual discretion to consider claims falling outside the guidelines in “extraordinary circumstances” where it is in the interests of justice to do so.

“Mr Bain’s claim falls outside the guidelines because he was acquitted following a retrial. However, it is open to him to meet the extraordinary circumstances test,” Mr Power said.

Claims under the Crown’s residual discretion are assessed on a case-by-case basis.  At a minimum, and consistent with the Cabinet guidelines applying to eligible claimants, a claimant must establish innocence on the balance of probabilities.  But for claims that fall outside the Cabinet guidelines something more is required that demonstrates that the circumstances are extraordinary.

This is quite significant. Even if David Bain qualified under the guidelines, he would still have to establish his innocence on the balance of probabilities.

In my opinion, that test in itself is a considerable hurdle. There is a large difference between saying there was reasonable doubt over whether David did it, to saying that you think it is more likely Robin Bain was the killer, than David Bain.

But Bain has to go beyond even balance of probabilities. That is the minimum test he would face. As he is outside the guidelines, he has to demonstrate extraordinary circumstances on top of innocence on the balance of probabilities.

As I have said before, I look forward to a QC being appointed, investigating the case, and reporting his or her opinion on the balance of probabilities as to whom was the killer. But before that can happen, a process for establishing what qualifies as extraordinary circumstances needs to be developed.