The Supreme Court refused, by a majority, to declare incompatible with the presumption of innocence a rule that compensation for a miscarriage of justice is payable only where fresh evidence shows beyond reasonable doubt that the person did not commit the offence. Mr Hallam and Mr Nealon had their convictions quashed as unsafe after years in prison, but the Secretary of State refused compensation because that test was not met. Two justices dissented and would have made the declaration.
Convictions quashed, but no compensation
Mr Hallam’s convictions rested largely on identification evidence. Photographs found on his telephone after trial undermined the suggestion that he had invented an alibi. The Court of Appeal quashed the convictions as unsafe. He had spent more than seven years in prison.
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In Mr Nealon’s case, DNA evidence discovered after trial pointed to another possible perpetrator. The Court of Appeal held that the fresh material could have led a jury to acquit and quashed his conviction as unsafe. No retrial was sought. He had spent 17 years in prison.
Each applied for compensation. By letters of 12 June 2014 and 14 August 2014, the Secretary of State refused. The fresh evidence did not, in his view, show beyond reasonable doubt that either man had not committed the offence. The letters also said that the refusals were not intended to cast doubt on the quashing, and that each man was presumed to be and remained innocent.
The compensation rule
Section 133 of the Criminal Justice Act 1988 requires compensation where a conviction is reversed, or the person pardoned, because a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to article 14(6) of the International Covenant on Civil and Political Rights. In England and Wales, however, the Court of Appeal quashes a conviction because it is unsafe, not because it finds a miscarriage of justice or declares the appellant innocent.
In Adams, a majority had interpreted the earlier version of section 133 to include cases where fresh evidence so undermined the prosecution case that no conviction could possibly be based on it. That was a more demanding test than showing that the conviction was unsafe.
From 13 March 2014, section 133(1ZA), inserted by the Anti-social Behaviour, Crime and Policing Act 2014, confined a miscarriage of justice to a case in which the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence. Both applications were refused under that test.
The challenge
Article 6(2) of the European Convention provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The appellants asked for a declaration that section 133(1ZA) is incompatible with it. The Divisional Court and the Court of Appeal rejected the claim. They considered themselves bound by Adams to hold that article 6(2) did not apply to section 133. The Court of Appeal added that, if free to decide, it would have followed the Grand Chamber in Allen v United Kingdom, which had held that article 6(2) applied to proceedings under the unamended section. Both courts also held that the amended test was compatible in any event.
The Supreme Court had to decide whether article 6(2) applies to section 133 decisions, and whether Adams should be departed from on that point; and, if it applies, whether section 133(1ZA) is incompatible with it. Section 2 of the Human Rights Act 1998 required the Court to take account of Strasbourg case law, but not necessarily to follow it.
Why most justices refused a declaration
There was no single majority reasoning. Lord Mance stressed that a criminal trial and a criminal appeal decide whether guilt has been proved and whether a conviction is unsafe, not whether the defendant is factually innocent. The Court of Appeal has no power to make a formal declaration of innocence. It may rarely say that the evidence plainly exonerates an appellant, but silence on that point implies nothing, and section 133 is for the Secretary of State.
Lord Mance, with whom Lord Lloyd-Jones agreed, would not extend article 6(2) beyond the approach in Adams and Gale: after an acquittal or discontinuance, a later decision must not suggest that the person should have been convicted on the criminal standard. Neither the subsection nor the refusal letters did that. Even if article 6(2) went further, he was not persuaded of incompatibility. Allen had accepted a refusal where the appeal court held only that fresh evidence might have produced a different result. He saw no coherent Convention distinction between requiring proof that no conviction could possibly stand and requiring proof that the person did not commit the offence. He regarded the relevant Strasbourg case law as unsettled, and the specific point as not directly decided.
Lord Hughes held that article 6(2) does not apply to a section 133 claim. In that context, innocence means that the person is unconvicted and not liable to punishment, not that he has been exonerated on the facts. Requiring him to prove the separate statutory conditions for compensation does not put guilt back in issue. Even if article 6(2) applied, that requirement would not breach it.
Lord Wilson thought the Strasbourg case law on the reach of article 6(2) incoherent. He agreed with Lord Reed that, if that meaning were adopted, section 133(1ZA) would be incompatible. He would not adopt it, and would not declare Parliament’s legislation incompatible on that basis.
Lady Hale agreed that article 6(2) was engaged, but was not convinced that Strasbourg would find a violation on these facts. As in Allen, the convictions had been quashed because a reasonable jury might or might not have convicted. She considered a declaration inappropriate in claims by individuals in whose cases that court was unlikely to find a violation. She separated that conclusion from any view of the merits of the 2014 amendment.
The dissent
Lord Reed, with whom Lord Kerr agreed, would have departed from Adams on applicability. In Allen, the Grand Chamber had rejected the argument that the compensation provision excluded article 6(2). The proceedings were linked to the criminal appeal because the quashing was a prerequisite and the Secretary of State had to examine the appeal judgment. That link remained after the amendment.
Lord Reed considered the new test incompatible because it requires an assessment of whether a person whose conviction has been quashed has shown that he did not commit the offence. A refusal is likely to imply that innocence has not been established and so to cast doubt on the acquittal. A new fact usually cannot be assessed apart from the evidence as a whole, as the photograph and the DNA showed. Saying in the refusal letter that the person remains presumed innocent does not cure that effect. Lord Reed and Lord Kerr would have allowed the appeals and made a declaration of incompatibility.
Verdict: By five votes to two, the Court dismissed both appeals and refused the declaration of incompatibility. The compensation refusals stood. Lord Reed and Lord Kerr would have made the declaration.
Source: R (on the applications of Hallam and Nealon) v Secretary of State for Justice [2019] UKSC 2
