When Power Goes Wrong · Who Pays? · Part 21

Who pays when a conviction is quashed—but no ordinary damages right exists?

New Zealand has no general legal right to compensation for wrongful conviction and detention. Cabinet may make an ex gratia payment under the current 2023 Compensation Guidelines if the eligibility and innocence criteria are satisfied.

Wrongful-conviction compensation is a clean example of payment without an ordinary damages entitlement.

The Ministry of Justice states that there is no legal right to compensation from the Government merely because a conviction is quashed. Instead, Cabinet has adopted Compensation Guidelines and may, in its discretion, approve an ex gratia payment.

The current guidelines require, among other matters, that Cabinet be satisfied of innocence on the balance of probabilities, compensable loss and that compensation is in the interests of justice.

This is not a Crown Proceedings Act damages judgment.The payment route is discretionary Cabinet compensation. The current guidelines also contemplate non-monetary redress such as a public apology or statement of innocence.

Legal entitlement?No general legal right merely from quashing of conviction.

Decision-makerCabinet under the Compensation Guidelines after Ministry/Ministerial assessment.

Payment characterEx gratia compensation.

Current guideline ratesThe 2023 guidelines specify benchmark amounts for custody/detention and defined additional losses.

A person may have suffered a profound state-caused wrong yet still need to use a discretionary compensation scheme rather than a conventional damages claim.

Official schemeMinistry of Justice — Compensation for wrongful conviction and detention.

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