Nealon and Hallam v. the United Kingdom [GC]

Legal summary

June 2024

Nealon and Hallam v. the United Kingdom [GC] - 32483/19 and 35049/19

Judgment 11.6.2024 [GC]

Article 6

Article 6-2

Presumption of innocence

Refusal of compensation for a miscarriage of justice, following quashing of applicants’ criminal convictions as “unsafe”, for failing to meet new statutory test: no violation

Facts – The applicants’ criminal convictions were quashed by the Court of Appeal (Criminal Division) (“CACD”) on the ground they were “unsafe” in the light of new evidence that had emerged. The prosecution did not seek a retrial. Both applicants subsequently applied for compensation for “a miscarriage of justice”. Their applications were considered under the new section 133(1ZA) of the Criminal Justice Act 1998 (“the Act”), the Act having been amended in 2014 following the Grand Chamber’s judgment in Allen v. the United Kingdom. The initial statutory test under section 133(1) of the Act had required that a new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice. Prior to the insertion of section 133(1ZA) there was no statutory definition of miscarriage of justice. The new section provided for compensation for a miscarriage of justice only where a new or newly discovered fact showed beyond reasonable doubt that the applicant had not committed the offence. The applicants’ applications were refused as they had not satisfied that test. Their applications for judicial review were rejected and their appeals were dismissed as the domestic courts held that section 133(1ZA) of the Act was not incompatible with Article 6 § 2 of the Convention.

The applicants complain under Article 6 § 2 that the rejection of their compensation claims for miscarriage of justice on the basis of the new test in section 133(1ZA) breached their right to be presumed innocent.

On 28 February 2023 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.

Law – Article 6 § 2:

(a) Preliminary observations – Article 6 § 2 had two aspects. The first aspect, acted as a procedural guarantee in the context of a criminal trial, imposing requirements in respect of, inter alia, the burden of proof; legal presumptions of fact and law; the privilege against self‑incrimination; pre-trial publicity; and premature expressions, by the trial court or by other public officials, of a defendant’s guilt. The second aspect, which was the one relevant to the applicants’ case, was aimed, regardless of the nature of the case, at protecting individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings had been discontinued, from being treated by public officials and authorities as though they were in fact guilty of the offence charged. That was because those persons were innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To that extent, therefore, the presumption of innocence remained after the conclusion of criminal proceedings in order to ensure that, as regards any charge which had not been proven, the innocence of the person in question was respected. That overriding concern lay at the root of the Court’s approach to the applicability of Article 6 § 2 in those cases.

(b) Applicability – In Allen the Grand Chamber had considered the scheme under section 133 of the Act (prior to its 2014 amendment) and, on the basis of the evidence before it, had been satisfied that the applicant had demonstrated the existence of the necessary link between the criminal proceedings and the subsequent compensation proceedings; it had been the subsequent reversal of the conviction which had triggered the right to apply for compensation for a miscarriage of justice. Further, in order to examine whether the cumulative criteria in section 133 had been met, the Justice Secretary and the courts in judicial review proceedings had been required to examine the CACD’s judgment in order to identify whether the reversal of the conviction had been based on new evidence and whether it had given rise to a miscarriage of justice. As it had not been suggested that the section 133 scheme had  been amended in any other material way, the compensation proceedings continued to require examination of the outcome of the prior criminal proceedings and, in particular, the CACD’s judgment. The Court emphasised that in compensation proceedings the decision-maker’s focus was on the impact of the new or newly discovered fact, a point which might be central to any assessment of the merits were Article 6 § 2 to be deemed applicable. However, he or she was also required to engage in an evaluation of the evidence, insofar as necessary, to assess whether that fact showed beyond reasonable doubt that the applicant had not committed the offence. In that regard, the present case was distinguishable from cases examined by the Court in which courts, in the subsequent proceedings, had not been called upon to examine the outcome of the prior criminal proceedings and/or to engage in a review or evaluation of the evidence in the criminal file.

The Court therefore saw no reason to depart from its conclusion in Allen regarding the applicability of Article 6 § 2.

Conclusion: Article 6 § 2 applicable (unanimously).

(c) Merits –

(i) Application of the general principles in the cases following Allen and the approach to be taken in cases concerning the second aspect of Article 6 § 2 – The Court had, for the most part, followed the approach set out in Allen in relation to the three different strands of its case-law concerning the second aspect  namely, (1) costs issues and claims for compensation by former accused, in which a distinction had been drawn between (a) proceedings which followed an acquittal and (b) those which followed a discontinuance; (2) cases involving civil compensation claims lodged by victims; and (3) cases concerning disciplinary proceedings. In the second and third strand of cases as well as those falling with the second limb of the first strand, the Court, regardless of whether the criminal proceedings had ended in a discontinuance or an acquittal, had attached decisive importance to whether the impugned reasoning amounted to an imputation or affirmation of criminal guilt. However, cases relating to costs issues and claims for compensation or for defence costs by a former accused following an acquittal (cases falling within the first limb of the first strand) were somewhat more problematic.

In particular, the Court considered that it was no longer necessary or desirable to maintain the distinction between acquittals and discontinuances that had been developed in its case-law following the Sekanina v. Austria judgment with regard to the first strand of cases and which afforded a higher level of protection to persons who had been acquitted. While…

… at first glance a discontinuance might not appear to have the same exonerating effect as an acquittal, on closer inspection the reality was far more nuanced and less clear cut. Criminal proceedings might be discontinued because there was simply not enough evidence to prosecute or if there was ample evidence to prosecute (and maybe even to convict) discontinuance or acquittal might be on a technicality. There appeared to be no good reason why the latter should be in a more favourable position, simply because their cases had ended in an acquittal. Moreover, the significance of a discontinuance might vary between individual cases and also between different legal systems.

It was also noteworthy that in Allen (which, like Sekanina, concerned a compensation claim against the State by a former accused) the Grand Chamber had not deemed it appropriate to uphold the clear distinction between discontinuance and acquittal as laid down in the Sekanina judgment. Although it did not signal an express departure from the existing case-law, the Allen ruling nevertheless entailed a significant qualification regarding the kind of circumstances in which the Court would be prepared to accord the heightened level of protection of the presumption of innocence that an acquitted person might be able to derive from the second aspect of Article 6 § 2. In reality, many cases were likely to fall into that grey area.

Moreover, the distinction between a discontinuance and a final acquittal on the merits had not been applied with respect either to cases involving civil compensation claims lodged by victims and cases concerning disciplinary proceedings (the second and third strands, respectively) or to any other second aspect cases which did not fall neatly into any of the above-mentioned three strands.

Although there were important policy reasons for not allowing an acquittal to preclude for example, an award of damages to a victim or the protection of an at-risk child,  there was no obvious legal reason for according a heightened protection to a small subset of second aspect cases. Doing so could even lead to incongruous outcomes of post‑acquittal proceedings brought, on the one hand, by the victim claiming civil compensation from the acquitted person and, on the other hand, by the acquitted person against the State on account of damages from the prosecution or defence costs.

Consequently, henceforth, regardless of the nature of the subsequent linked proceedings, and regardless of whether the criminal proceedings ended in an acquittal or a discontinuance, the decisions and reasoning of the domestic courts or other authorities in those subsequent linked proceedings, when considered as a whole, and in the context of the exercise which they were required by domestic law to undertake, would violate Article 6 § 2 in its second aspect if they amounted to the imputation of criminal liability to the applicant. To impute criminal liability to a person was to reflect an opinion that he or she was guilty to the criminal standard of the commission of a criminal offence.

That approach reflected the fact that at national level judges might be required, outside the context of a criminal charge, to sit in cases arising out of the same facts as a previous criminal charge which did not result in a conviction. The protection afforded by Article 6 § 2 in its second aspect should not be interpreted in such a way as to preclude national courts in subsequent proceedings – in which they are exercising a different function to that of the criminal judge, in accordance with the relevant provisions of domestic law – from engaging with the same facts as were decided in the previous criminal proceedings, provided that in doing so they did not impute criminal liability to the person concerned. A person who was acquitted or in respect of whom criminal proceedings were discontinued would remain subject to the ordinary application of domestic rules as to evidence and the standard of proof outside criminal trials.

(b) The application of those principles to the present case – The question that arose in the present case was whether the refusal of compensation had imputed criminal liability to the applicants. A violation could only be found if it had.

Article 6 § 2 did not guarantee a person whose criminal conviction had been quashed a right to compensation for a miscarriage of justice and Article 3 of Protocol No. 7 to the Convention only provided a right to compensation where certain conditions were satisfied. In any event, the United Kingdom had neither signed nor acceded to Protocol No. 7. While Article 3 of Protocol No. 7 did not constitute a form of lex specialis excluding the application of Article 6 § 2 to claims for compensation for a miscarriage of justice, the latter could not be interpreted to create a right to such compensation against Contracting States that had not ratified Protocol No. 7. Furthermore, in a case under Article 6 § 2, it was not for the Court to define “miscarriage of justice” when Article 3 of Protocol No. 7 did not do so. The respondent State was therefore free to decide how “miscarriage of justice” should be defined for these purposes, and to thereby draw a legitimate policy line as to who out of the wider class of people who had had their convictions quashed on appeal should be eligible for compensation, so long as the policy line was not drawn in such a way that the refusal of compensation in and of itself imputed criminal guilt to an unsuccessful applicant.

The test in section 133(1ZA) required the Justice Secretary, in the context of a confidential civil and administrative procedure, to comment not on the basis of the evidence as it stood at the appeal whether the applicant should be, or would likely be, acquitted or convicted or on whether the evidence was indicative of the applicant’s guilt or innocence, but only on whether the new or newly discovered fact, which had resulted in the quashing of the conviction, showed beyond reasonable doubt that the applicant did not commit the offence in question. Therefore, it could not be said that the refusal of compensation by the Justice Secretary imputed criminal guilt to the applicant by reflecting the opinion that he or she was guilty to the criminal standard of committing the criminal offence, thereby suggesting that the criminal proceedings should have been determined differently. To find that it could not be shown to the very high standard of proof of beyond reasonable doubt that an applicant did not commit an offence – by reference to a new or newly discovered fact or otherwise – was not tantamount to a positive finding that he or she did commit the offence.

In that connection, the Court emphasised that, in its second aspect, Article 6 § 2 protected innocence in the eyes of the law and not a presumption of factual innocence as suggested by the applicants. The Justice Secretary was not required by section 133(1ZA) to comment on an applicant’s innocence in the eyes of the law, and the refusal of an application for compensation under that section was not inconsistent with his or her continuing innocence in that legal sense.

Accordingly, the Court held that the refusal of the applicants’ claims for compensation under section 133(1ZA) had not breached the presumption of innocence in its second aspect. Although, the Court was not insensible to the potentially devastating impact of a wrongful conviction, its role was not to determine how States should translate into material terms the moral obligation they might owe to persons who had been wrongfully convicted; rather, in the present case its sole task had been to determine whether there had been a breach of Article 6 § 2 on the facts of the two cases before it due to the operation of a compensations scheme established domestically which had been clearly conceived and operated in restrictive terms.

Conclusion: no violation (twelve votes to five).

(See also Minelli v. Switzerland, 8660/79, 25 March 1983; Englert v. Germany, 10282/83, 25 August 1987; Nölkenbockhoff v. Germany, 10300/83, 25 August 1987; Sekanina v. Austria, 13126/87, 25 August 1993, Legal Summary; Allen v. the United Kingdom [GC], 25424/09, 12 July 2013, Legal Summary; K.F. v. the United Kingdom (dec.), 30178/09, 3 September 2013; Adams v. the United Kingdom (dec.), 70601/11, 12 November 2013; A.L.F. v. the United Kingdom (dec.), 5908/12, 12 November 2013; N.A. v. Norway, 27473/11, 18 December 2014; Cleve v. Germany, 48144/09, 15 January 2015; Fleischner v. Germany, 61985/12, 3 October 2019; Farzaliyev v. Azerbaijan, 29620/07, 28 May 2020, Legal Summary; Pasquini v. San Marino (no. 2), 23349/17, 20 October 2020; Ilias Papageorgiou v. Greece, 44101/13, 10 December 2020 ; Marinoni v. Italy, 27801/12, 18 November 2021; Benghezal v. France, 48045/15, 24 March 2022; Rigolio v. Italy, 20148/09, 9 March 2023)

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This summary by the Registry does not bind the Court.

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