There are 2 compensation schemes for miscarriages of justice – the statutory scheme and the ex gratia scheme.
There is different eligibility criteria for each scheme. Your solicitor or a support organisation can help you understand if your case is eligible.
You may be able to claim compensation under the statutory scheme if you've been convicted (found guilty) of a crime and:
- your conviction has been reversed on appeal
- your appeal was successful because a new fact shows beyond reasonable doubt that there has been a miscarriage of justice
Under the statutory scheme, 'reversed' means a conviction that was quashed or set aside:
- by an appeal made to the Appeal Court out of time
- after the Scottish Criminal Cases Review Commission sent your case to the Appeal Court
- by a free pardon using the Royal Prerogative of Mercy
- after an application by the prosecutor under section 188 (1) (b) of the Criminal Procedure (Scotland) Act 1995
- in a judicial review (a court proceeding about the lawfulness of a decision or action made by a public body)
You do not need to have spent time in custody to claim compensation under the statutory scheme.
Cases not eligible for compensation
You will not be eligible to claim compensation under the statutory scheme if:
- your conviction was quashed as the result of an in time appeal (the normal appeals process)
- your conviction was overturned because of anything other than a newly discovered fact (fresh evidence)
Ex gratia scheme
You may be able to claim compensation under the ex gratia scheme if you have spent time in custody because of a wrongful charge or conviction and:
- the police or another public authority did something seriously wrong that led to you being charged with, or convicted of, a crime; or
- there are other exceptional circumstances that would justify the payment of compensation
The circumstances where you may be eligible for compensation under the ex gratia scheme were set out in a statement by the then Secretary of State for Scotland in January 1986:
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."
If the police or another public authority did something seriously wrong
Things the police or another public authority should not do that might justify the payment of compensation include:
- making up evidence
- holding back or not sharing evidence
- not carrying out a proper investigation
You will not automatically get compensation if the police or another public authority did something wrong. The full facts and circumstances of the case will be reviewed.
Public authorities do not include members of the judiciary – for example, judges. A case where there was an error by a judge will not be eligible for compensation unless there are exceptional circumstances that would justify the payment of compensation.