International and Comparative Law on Compensating Miscarriages of Justice: From Proven Innocence to Wrongful Detention

Kent Roach*

This article examines rights to compensation for miscarriages of justice under Articles 9(5) and 14(6) of the International Covenant on Civil and Political Rights (ICCPR). National implementation of these rights has been uneven. There has been a lack of consensus about what constitutes a miscarriage of justice. This article defines the distinct but overlapping concepts of miscarriages of justice, wrongful convictions, and proven innocence. These concepts are interpreted as a means to implement what Guido Calabresi and Philip Bobbitt called “tragic choices” in rationing scarce resources. Innocence requirements conserve the most resources while miscarriages of justice expend the most resources including compensation for wrongful pre-trial detention.

*Professor of Law, University of Toronto and Co-Founder Canadian Registry of Wrongful Convictions. This Article draws heavily, as does much of my scholarship, on the wonderful and inspiring work of my former teacher Guido Calabresi. This Article is respectfully and affectionately dedicated to him. I also thank Valeena Beety, Brandon Garrett, Maximo Langer, Jamil Mujuzi, Findlay Stark and Hannah Quirk for helpful comments on an earlier draft. Errors remain mine. Finally, I thank Professor Findlay Stark who organized a seminar and all those who attended the seminar at the University of Cambridge’s Faculty of Law in November 2023 where a draft of this Article was presented.