NEALON v. THE UNITED KINGDOM and 1 other application

Communicated on 14 May 2020

Published on 2 June 2020

FIRST SECTION

Applications nos. 32483/19 and 35049/19
Victor NEALON against the United Kingdom
and Sam HALLAM against the United Kingdom
lodged on 14 June 2019 and 25 June 2019 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr Victor Nealon, is an Irish national who was born in 1960. He is represented before the Court by Mr M. Newby of QualitySolicitors Jordans, a firm of solicitors based in Doncaster.

The applicant in the second case, Mr Sam Hallam, is a British national who was born in 1987 and lives in London. He is represented before the Court by Ms J. Sul of Birnberg Peirce Limited, a firm of solicitors based in London.The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.Background

Both applicants had their convictions quashed on the ground that they were “unsafe”, and both were subsequently refused compensation for wrongful conviction as they did not satisfy the relevant test in section 133 of the Criminal Justice Act 1988; that is, that a new or newly discovered fact showed beyond reasonable doubt that there had been a “miscarriage of justice”, and the non-disclosure of the unknown fact was not wholly or partly attributable to the applicant. Prior to 2014, “miscarriage of justice” had been interpreted by the domestic courts to include cases falling within the following categories: (1) where the fresh evidence showed clearly that the defendant was innocent of the crime of which he had been convicted; and (2) where the fresh evidence so undermined the evidence against the defendant that no conviction could possibly be based upon it. The following categories were excluded from the common law definition: (3) where the fresh evidence rendered the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and (4) where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

This was the statutory regime considered by the Court in Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013.

Following the judgment in Allen, section 133 of the Criminal Justice Act 1988 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014. The 2014 Act inserted a new section 133(1ZA) which confined the definition of “miscarriage of justice” to category (1) cases; that is, an applicant was eligible for compensation if and only if the new or newly discovered fact showed beyond reasonable doubt that he or she did not commit the offence.The first applicant

On 27 January 1997 the first applicant was convicted of attempted rape, primarily on the basis of identification evidence. On 12 March 1997 he was sentenced to life imprisonment with a minimum term of seven years.

On 12 July 2012 the Criminal Cases Review Commission referred the first applicant’s conviction to the Court of Appeal Criminal Division on the grounds of new DNA evidence, which he contended gave rise to a real possibility that the Court of Appeal would conclude that his conviction was unsafe. Further analysis of the clothes the victim was wearing on the night of the attack had revealed DNA of a male, from what were probably saliva stains, on the front of her blouse and the outside and inside of her brassiere. There were consistencies between the samples on the blouse and brassiere. Complex mixtures of DNA were also found on the victim’s skirt and tights. The DNA on the blouse and the brassiere did not match that of the first applicant. Subsequent tests had also eliminated the victims’ partner at the time, the officers involved in the investigation, four men who arrived at the scene of the attack, and the scientists involved in the initial analysis of the clothing.

On 13 December 2013 the Court of Appeal allowed the first applicant’s appeal and quashed his conviction. Reasons were given on 28 March 2014. Although the court accepted that there was sufficient evidence at the time of the trial for the jury to have reached its verdict of guilty, it considered it “self-evident” that the prosecution’s case had not been “overwhelming”. Furthermore, while the prosecution’s case had not been “demolished” by the fresh evidence, in the court’s view its effect on the safety of the conviction was “substantial”. The court continued:

“We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single ‘unknown male’ had been found in some of the key places where the attacker had ‘mauled’ the victim ... this could well have led to the appellant’s acquittal. ... [T]he jury may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the ‘unknown male’ – and not the appellant – was the attacker.

We stress, therefore, that the effect of this material is to call into question the safety of the conviction because it might reasonably have led the jury to reach a different verdict ... While [counsel for the Crown Prosecution Service’s] submissions as to why the jury would have been entitled to reject the possibility that the ‘unknown male’ was responsible for the attack provide a dimension to the debate that requires serious consideration, we have no doubt that the effect of the new evidence is that the case may have resulted in an acquittal.”

Following the quashing of his conviction the first applicant applied for compensation for wrongful conviction. On 12 June 2014 the Miscarriages of Justice Team at the Ministry of Justice notified him that he was not entitled to compensation under section 133 of the Criminal Justice Act 1988 (“the 1988 Act” – see section on relevant domestic law and practice below) because his case failed to meet the statutory test for compensation. It stated:

“Following the coming into force of section 175 of the Anti-Social Behaviour, Crime and Policing Act 2014, compensation under section 133 of the CJA is payable under section 133 of the CJA 1988 where a person’s conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence, and the non-disclosure of the unknown fact was not wholly or partly attributable to the person convicted.

Section 133(5) of the Act defines ‘reversed’ in this context as including a conviction having been quashed following an out of time appeal or following a reference to the Court of Appeal by the Criminal Cases Review Commission (CCRC). Your client’s appeal followed a referral by the CCRC and was therefore ‘reversed’ for these purposes.

However, on the basis of the information available, the Justice Secretary has concluded that your client has not suffered a miscarriage of justice as defined by section 133 of the 1988 Act. The Court of Appeal quashed your client’s conviction on the basis that the introduction of the new DNA material called into question the safety of that conviction. Although the new evidence shows that the DNA was from an ‘unknown male’, this does not mean that it undoubtedly belonged to the attacker. Expert evidence for the prosecution at the appeal stated it was plausible that the attacker transferred little or no DNA to the victim’s clothing during the commission of the offence, and that the DNA from the unknown male may not have been crime related. The Court of Appeal said that these arguments required ‘serious consideration’. It also found that the original jury had been entitled to convict your client on the basis of the existing identification evidence (which was not at issue in the appeal). Whilst the Court of Appeal decided, ultimately, that the jury ‘may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the “unknown male” – and not the applicant – was the attacker’, the court was explicit that the fresh evidence did not ‘demolish’ the prosecution evidence.

Having considered the judgment of the Court of Appeal, and your client’s own submissions, the Justice Secretary is not satisfied that your client’s conviction was quashed on the ground that a new or newly discovered fact shows beyond reasonable doubt that your client did not commit the offence.

...

Finally, it is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt upon the decision to quash your client’s conviction. Your client is presumed to be and remains innocent of the charge brought against him. His application has been rejected because his case does not in the Justice Secretary’s view meet the statutory test for compensation under section 133 of the Criminal Justice Act 1988.”The second applicant

The second applicant was convicted of murder on 11 October 2004. The case against him depended on the visual identification evidence of two witnesses. His defence was that he was not at the scene of the murder and he provided an alibi (“TH”) who he said he was with at the time of the killing. However, TH denied having seen the applicant on the days either side of the murder.

Although the second applicant’s first appeal against conviction was dismissed, in July 2011 the case was referred back to the Court of Appeal on the ground that new evidence, including photographs obtained from the second applicant’s telephone, cast doubt on both the identification evidence and upon TH’s evidence that he had not seen him at all in the days surrounding the killing.

On 17 May 2012 the Court of Appeal allowed his appeal and quashed his conviction. According to the Court of Appeal,

“The case against the appellant depended on the visual identification evidence of two witnesses, neither of whom said anything in his or her initial statements to the police to indicate that they recognised the appellant (whom they knew) or anyone like him at the scene of the crime. ... Neither was a particularly satisfactory witness. Their various accounts contained numerous internal inconsistencies and contradictions, and were contradicted by other evidence. ... In any event, the purported recognition or identification of the appellant took place in very difficult circumstances. It amounted to little more than a fleeting glimpse. Thus, even if the witnesses had remained rock solid, consistent with each other and with the evidence of other witnesses, there was scope for a case of mistaken identity. Proper independent supporting evidence was essential on the facts here.

We now know there is the real possibility that the appellant’s failed alibi was consistent with faulty recollection and a dysfunctional lifestyle, and that it was not a deliberate lie. The proper support to the Crown’s case has fallen away.

...

In our judgment, the cumulative effect of these factors is enough to undermine the safety of these convictions.”

Although the second applicant had argued that there was sufficient evidence to lead to the conclusion that he was innocent of the offences of which he was convicted the court was “not satisfied it would be appropriate to use that power on the facts of this case”.

Following the quashing of his conviction the second applicant applied for compensation for wrongful conviction. On 14 August 2014 the Miscarriages of Justice Team at the Ministry of Justice notified him that he was not entitled to compensation under section 133 of 1988 Act because his case failed to meet the statutory test for compensation. The letter stated:

“Following the coming into force of section 175 of the Anti-Social Behaviour, Crime and Policing Act 2014, compensation under section 133 of the Act is only payable where a person’s conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence, and the non-disclosure of the unknown fact was not wholly or partly attributable to the person convicted.

The CA considered the new telephone (including photographic) evidence, which was not considered at your client’s trial, was sufficient, especially when considered with the potentially admissible evidence from [GR] and arguments as to witness credibility, to render the conviction unsafe.

However, the Secretary of State considers that the non-disclosure of the evidence on which the CA principally based its decision to quash Mr Hallam’s conviction – namely, the mobile phone evidence – appears to have been partly, if not wholly attributable to Mr Hallam himself. According to the Court of Appeal, the two phones taken from the appellant on his arrest do not seem to have been interrogated by either the investigating officers or the defence team. As the Court noted, ‘it might be thought that [Mr Hallam] would have alerted his defence team to the fact that he had taken photographs on his new phone in the days before and after the murder’; he was himself presumably ‘well aware that he had owned a new phone on which he had taken lots of photographs’.

In any event, the Secretary of State does not consider that the new evidence before the Court shows beyond reasonable doubt that Mr Hallam did not commit the offence. The CA concluded that the new evidence potentially placed your client away from the murder scene by showing your client with another person in the early evening of [the night of the murder], and cast doubt on the concept that your client had deliberately created a false alibi for his whereabouts on the night of the murder. The CA view was that the cumulative effect of these factors was enough to undermine the safety of your client’s convictions which were quashed on that basis. However, the fresh evidence does not establish positively that your client was not at the murder scene on [the night of the murder]. Indeed, the Court of Appeal found that it ‘cannot establish a positive alibi for the night in question’. In all the circumstances, the Secretary of State does not consider that this is a case that meets the statutory test for compensation under section 133 of the 1988 Act.

We further note in this regard, that whilst the Court of Appeal quashed Mr Hallam’s convictions on the basis that they were unsafe, it expressly declined the invitation of Mr Hallam’s Counsel to exercise its discretionary power ... to state that the new evidence demonstrated ‘the factual innocence of the appellant’.

It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt upon the decision by the CA to quash your client’s convictions. Mr Hallam is presumed to be and remains innocent of the charges. His application has been rejected because it does not meet the statutory test for compensation under section 133 of the 1988 Act.”The judgment of the Divisional Court

The applicants both sought permission to apply for judicial review of the Ministry of Justice’s decision to refuse their applications for compensation for wrongful conviction. Their cases were listed together for “rolled up” hearings. Judgment was handed down on 18 June 2015.

Both applicants argued that section 133(1ZA) of the 1988 Act was incompatible with Article 6 § 2 of the Convention because it required them to “prove” their innocence in order to be eligible for compensation. They therefore sought a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998

However, the court considered itself bound by the judgment in R(Adams) v. Secretary of State for Justice [2012] 1 AC 48 (see section on domestic law and practice below), in which the Supreme Court held that Article 6 § 2 of the Convention had no bearing on a decision for compensation under section 133 of the 1988 Act. In the court’s view, it was bound by that decision whether “miscarriage of justice” encompassed both cases where the new fact provided conclusive proof of innocence and cases where a new or newly discovered fact showed that the evidence against the convicted person had been so undermined that no conviction could possibly be based on it, or whether it was confined to the first of those categories.

The court readily accepted that, following Allen (cited above), one could argue that section 133(1ZA) offended against the presumption of innocence as it required convicted persons to demonstrate their innocence. Nevertheless, even assuming that Article 6 § 2 of the Convention was applicable to decisions under section 133 of the 1988 Act, such a conclusion would be wrong. First of all, the court considered the reasoning of the Supreme Court in R(Adams) to be “persuasive in the face of the contrary conclusion reached by the Strasbourg Court”. Secondly, in the court’s view section 133 did not require an applicant for compensation to prove his or her innocence. Rather, the Secretary of State had to be satisfied of the link between the new fact and the applicant’s innocence before he was required to pay compensation, and not the applicant’s innocence in a wider sense. As the court put it:

“The statutory scheme maintains the presumption of innocence, which is not impugned, but provides compensation if the Secretary of State is satisfied that the new fact conclusively proves innocence. The refusal of compensation on the basis that the statutory criteria are not established does not carry with it the implication that the person concerned is guilty.”

The court did not, therefore, consider that the decision in Allen lead to the conclusion that the Court would necessarily consider section 133(1ZA) to violate, without more, the presumption of innocence.

In conclusion, the court granted both applicants permission to apply for judicial review and dismissed their claims.The judgment of the Court of Appeal

The applicants were granted permission to appeal to the Court of Appeal. They submitted that Strasbourg authority, in particular the Grand Chamber decision in Allen, showed that Article 6 § 2 of the Convention applied to section 133 compensation proceedings; and that section 133 (as amended) was incompatible with Article 6 § 2 because it offended against the presumption of innocence.

The Court of Appeal gave judgment on 11 April 2016. In its view, the Administrative Court had been right to hold that R(Adams) was binding precedent that Article 6 § 2 was not applicable to the operation of section 133, whatever definition of “miscarriage of justice” was adopted; and that this remained the case regardless of the what the Court subsequently said in Allen.

In light of the aforementioned conclusion, the Court of Appeal was bound to dismiss the appeal. However, as it had heard full argument, it nevertheless expressed its conclusions on whether, in the light of Allen and the subsequent Strasbourg jurisprudence, Article 6 § 2 applied to section 133 (as amended) and, if it did, whether section 133 (as amended) was incompatible with that Article.

It considered that Allen contained a very clear statement by the Grand Chamber precisely on the issue of whether Article 6 § 2 applied to claims for compensation for miscarriages of justice under section 133. It was a carefully considered decision which was intended to be authoritative. Furthermore, it was made in the teeth of the Government’s invitation to conclude that the presumption of innocence was not engaged at all in the context of decisions taken under section 133 and, in consequence, to declare the application inadmissible. Therefore, while the Court of Appeal preferred the approach of the majority in R(Adams), it considered that the line of Strasbourg jurisprudence holding that Article 6 § 2 applied to claims for compensation following the quashing of convictions was both clear and constant.

However, for substantially the same reasons as were given by the lower court, the Court of Appeal did not accept that section 133 was incompatible with Article 6 § 2 of the Convention. It continued:

“The critical reason why section 133 is not incompatible with article 6(2) is that, as the Divisional Court said, it does not require the applicant to prove his innocence generally. The key issue for the purpose of establishing eligibility for compensation under section 133 is the effect of the new or newly discovered fact which led to the conviction being quashed on appeal. This is the point that Lord Phillips made at para 58 of Adams. As Mr Strachan submits, section 133 simply sets out a statutory basis for the payment of compensation in certain cases where a conviction is quashed out of time by reason of a new or newly discovered fact. The statute assumes that the Secretary of State proceeds on the basis that the applicant has been acquitted of the offence and is entitled to be treated as innocent in consequence. The Secretary of State is only required to look at whether the new or newly discovered fact (and nothing else) shows beyond reasonable doubt that the person did not commit the offence.

...

The focus on the effect of that new or newly discovered fact (rather than on whether the person can demonstrate innocence generally) is central to the operation of section 133. The fact that the Secretary of State is not persuaded beyond reasonable doubt by a new or newly discovered fact that an applicant is innocent does not entail that the Secretary of State casts doubt on his innocence generally. He is merely saying that the applicant’s innocence has not been proved by the new or newly discovered fact.”

The applicants’ appeals were therefore dismissed.The judgment of the Supreme Court

The applicants were granted permission to appeal to the Supreme Court, which gave judgment on 30 January 2019 ([2019] UKSC 2). By a majority of five Justices to two, it dismissed the appeal.

The Supreme Court considered that the central issue in the appeal could be split into two broad issues: whether Article 6 § 2 of the Convention applied to all decisions on, or the criteria for, the award of compensation under section 133 of the 1988 Act; and, if and insofar as Article 6 § 2 was applicable, whether the definition of “miscarriage of justice” in section 133(1ZA) was compatible with it.

In delivering the leading judgment, Lord Mance first addressed the underlying question of the place of innocence in criminal proceedings. He observed that in English law it was not the function of criminal proceedings to determine innocence. It was equally not the function of the Court of Appeal to determine whether the appellant did or did not commit the offence. Rather, the question to be determined by the Court of Appeal was whether the conviction was unsafe. Although it might in very rare cases state that an appellant had been exonerated, this was not the purpose of the appeal, and such cases should remain “very rare” lest an adverse inference could be drawn from the court’s unwillingness to express such a view.

Turning to the first of the issues in question, Lord Mance declined to follow the case-law of this Court, if and insofar as it may have gone further than to preclude reasoning that suggested a defendant in criminal proceedings leading to an acquittal or discontinuance should have been convicted of the criminal offence with which he was charged. Although he did not find the rationale of any distinction between (true) acquittals and discontinuance “easy to understand”, he held:

“Like Lord Phillips, with whose judgment in Serious Organised Crime Agency v Gale I concurred, I can however accept that, once criminal proceedings have concluded with acquittal, or, indeed, a discontinuance, no court should in civil or other proceedings express itself in terms which takes issue with the correctness of the criminal acquittal or discontinuance. Such an extension, achieving a degree of harmony with the approach in Strasbourg, seems at least workable and, of course, reflects what one would hope was anyway proper practice. But courts have often - in contexts not involving the pursuit of a criminal charge and using tools and language appropriate to such contexts - to engage with identical facts to those which have led to a criminal acquittal or discontinuance of criminal proceedings. In such circumstances, it is very commonly the case that the standard of proof will differ in the different contexts of criminal and other proceedings. It is, thus, entirely possible that a court may, in a context not involving the pursuit of any criminal charge, find on the balance of probabilities facts which could not be established beyond reasonable doubt in criminal proceedings. The question whether a link exists between the criminal and, say, civil proceedings then appears as a diversion from the real question. The ECtHR may itself be seen to accept that the concept of a link is not critical, because its statement that the words used may themselves create a sufficient link effectively collapses that concept into a consideration of the nature of the words. However, the question remains what nature of words is it permissible to use? The real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role.

If on the other hand, a court has, on the same facts as were in issue in criminal proceedings leading to an acquittal or discontinuance, determined a civil issue (or any issue other than a criminal charge) against the defendant, and has been confined itself to reasoning relevant to that issue, that means, as I see it, that it has applied the law, rather than infringed article 6(2). I do not believe that either the press or the public is wholly ignorant that the criminal standard of proof may on occasions lead to acquittal or discontinuance, in circumstances where the commission of the offence could be established on the balance of probabilities. There have been very well-publicised cases both here and across the Atlantic. There is also a legitimate public interest in such cases being publicly decided and clearly, rather than obscurely, reasoned.

Unfortunately, as it seems to me, the ECtHR has in a number of judgments condemned courts determining a civil issue for accurate descriptions of the elements of an offence constituting a tort simply because such elements also featured in past criminal proceedings. To require a civil court to tergiversate, by using words designed to obscure the fact that the law may find facts proved on a balance of probabilities which were not proved to the standard necessary for criminal conviction, does not assist either the law or the public or the defendant.”

Lord Mance therefore concluded that the appeals should be dismissed, since nothing in section 133(1ZA) or in the Secretary of State’s rejection of the applicants’ claims to compensation involved any suggestion that they should have been convicted of the criminal offence with which they were charged.

Even if he was wrong about that, Lord Mance could see no logical basis on which section 133(1ZA) could or should be seen as incompatible in terms with Article 6 § 2 of the Convention. He acknowledged that paragraph 133 of Allen might at first sight imply that it would be incompatible with Article 6 § 2 of the Convention to confine compensation to cases falling within the first category identified by the Supreme Court in R(Adams) (that is, where fresh evidence showed clearly that the defendant was innocent of the crime of which he had been convicted – see section on relevant domestic law and practice below). However, in his view

“the point has never been directly before or decided by the ECtHR, and I am far from confident that its implications have been worked through in a manner which makes it acceptable, or that the ECtHR would conclude that section 133(1ZA) is incompatible if the question were argued before it.”

First of all, he considered Article 3 of Protocol No. 7 to the Convention, which clearly envisaged such a provision as now existed under English law in section 133(1ZA) of the 1988 Act. Although in Allen the Grand Chamber considered the Explanatory Memorandum prepared by the Steering Committee for Human Rights alongside the draft Protocol to have been overtaken by the Court’s intervening case-law on Article 6 § 2, in Lord Mance’s opinion:

“As a statement of what the drafters actually intended by A3P7, one would have thought that the Explanatory Memorandum could not have been clearer. On what basis subsequent case law could silently overtake this clear original intention is not obvious.”

Moreover, even when section 133 was considered independently of the Explanatory Memorandum, it was clear from Allen that there was nothing wrong with a criminal court, when setting aside a conviction, expressing a conclusion that a case fell within the third category identified by the Supreme Court in R(Adams); that is, that fresh evidence rendered the conviction unsafe (see section on relevant domestic law and practice below). Indeed, a central plank of the judgment in Allen was that there was nothing wrong with a refusal of compensation on this ground. Lord Mance continued:

“It follows, as the other side of the coin from what I have already said, that the right to compensation can legitimately be expressed to depend upon whether (adopting the terminology in Adams) the conviction was set aside on a ground falling within category (1) or (2). Logically, a defendant wishing not merely to have a conviction set aside, but also wishing to recover compensation, must, unless the case is one of the rare cases (see paras 32 to 34 above) in which the CACD expresses its judgment setting aside the conviction in terms going further than a conclusion that the conviction is unsafe, persuade the Secretary of State to go further. In the rare case where the CACD does express itself in terms stating that the defendant is innocent, that will in practice be conclusive. The Secretary of State could not realistically go behind such a statement. But in other cases, where the CACD has merely determined that the conviction is unsafe, it must be open to the state to resist a defendant’s suggestion that the case falls within a different category that would entitle him to compensation, and for the Secretary of State to reach a conclusion on that basis. Otherwise, as soon as a defendant argues that the Secretary of State should go further than the CACD has gone and should view the circumstances as falling within a category for which the legislature has prescribed compensation, the state would have to accept this, and concede liability to pay compensation. This situation did not of course arise in Allen, because there was no attempt there by Ms Allen to bring her circumstances into any category other than that of category (3) within which the CACD had seen it as falling.

A defendant seeking compensation after the setting aside of his or her conviction by the CACD may therefore be required to show that the circumstances were not merely such that his conviction was unsafe. Using the terminology in Adams, the circumstances must be shown to fall within a higher category, which must, necessarily (and using the terminology in Adams), be either category (1) or category (2), or, since the enactment of section 133(1ZA), category (1) alone. Is there, in terms of compliance with the Convention, any sensible distinction between categories (1) and (2)? Category (1) is no more than a subset of category (2). If it is legitimate for the state to require a defendant to show at least that his or her case falls within category (2), on what basis could it be illegitimate for the state to require a defendant to show that it falls within category (1)? Putting the matter the other way around, the ECtHR has in para 133 in Allen implied that there would be an objection to requiring a defendant to show that the case fell within category (1). But it has not (at least in terms) addressed category (2). It may be that the ECtHR’s passing reference in para 133 to the inappropriateness of Lord Steyn’s test should be understood as embracing both categories (1) and (2). If so, then, as the preceding paragraph of this judgment shows, the effect would be largely to undermine the outcome of Allen itself. All that an applicant for compensation would need to do was assert this his or her claim fell into a higher category than category (3), and the state would be precluded from asserting the contrary, because to do so would be to infringe the ‘presumption of innocence’.

A way out of this impasse might exist if a sensible distinction could in the context of the Convention be drawn between categories (1) and (2). The legislation, or the language of the courts, could then be amended to speak not of proof of innocence, but of proof that the new or newly discovered fact so undermined the case against the applicant that no conviction could possibly be based on it. But could reference to a case as falling within category (2) sensibly be distinguished from whatever may be thought to be the ambit of the ECtHR’s implied objection to language bringing a case within category (1)? If, to use the ECtHR’s further words in Allen, para 136, it demonstrates ‘a lack of respect for the presumption of innocence which [a defendant] enjoys in respect of the criminal charge ... of which she has been acquitted’ to refuse compensation on the ground that the defendant has not shown innocence, it would presumably also demonstrate a lack of respect for the presumption of innocence to refuse it on the ground that the defendant had not shown that she was not only acquitted, but also that there was no evidence upon the basis of which she could possibly have been convicted. The two situations are distinct as a matter of domestic criminal law, and the legislature has distinguished between them for the purposes of compensation. But to distinguish between them in terms of the Convention and in relation to the question of infringement of the presumption of innocence, would seem to do no more than add another fine and unconvincing distinction, in an area where the application of the Convention already appears too full of unsatisfactory and unsatisfying distinctions and uncertainties.”

In conclusion, he did not consider this Court’s case-law to be coherent or settled on the points critical to the appeal.

Lady Hale considered that Article 6 § 2 was engaged, but did not accept that this Court would automatically find that it had been breached.

Lord Wilson believed that the appeals placed the court in a deeply uncomfortable position. While it afforded “profound respect” to the decisions of the Strasbourg Court, he was nevertheless persuaded that

“in its rulings upon the extent of the operation of article 6(2) of the Convention, the ECtHR has, step by step, allowed its analysis to be swept into hopeless and probably irretrievable confusion. An analogy is to a boat which, once severed from its moorings, floats out to sea and is tossed helplessly this way and that.”

In his view, the presumption of innocence in Article 6 § 2 had no further role following an acquittal; the presumption was for the purpose of the criminal law and an acquitted defendant had no need for a mere presumption since, for the purposes of the criminal law his or her innocence had become an irrebuttable fact. However, the Strasbourg jurisprudence had divorced the word “innocent” from its context and “blurred the crucial distinction between guilt for the purposes of the criminal law and guilt for other purposes”. In the words of Judge de Gaetano in Ashendon and Jones v. the United Kingdom (revision), nos. 35730/07 and 4285/08, 15 December 2011, the Court had thereby “launched article 6(2) into an orbit separate from that of the article”. Lord Wilson therefore considered that the line of Strasbourg jurisprudence culminating in Allen was “not just wrong but incoherent”. While he reluctantly agreed with Lord Reed (see below) that if Article 6 § 2 had the meaning ascribed to it by the Strasbourg Court, section 133(1ZA) of the 1988 Act was not compatible with it, he concluded that the Supreme Court should not adopt the meaning ascribed to Article 6 § 2 by the Strasbourg Court.

Lord Hughes also considered that Article 6 § 2 did not apply to section 133 claims for compensation. He opined:

“The central reality which has to be addressed by any legal test for the scope of article 6(2) is that the same factual issues which have to be decided in a criminal trial or investigation in order to reach a verdict of guilty or not guilty, or a decision as to prosecution, may also have to be decided for other legal purposes. Those other legal purposes may well involve the person who was the accused in the criminal trial or investigation. The other legal purposes may be sequential to the criminal trial or investigation (for example an application for costs) or they may be separately constituted (for example professional disciplinary proceedings against the accused or child care proceedings concerning his children). Some legal systems may adjudicate upon those other legal purposes in combined criminal and civil proceedings, by permitting the complainant in the criminal trial also to make a claim for compensation as a civil party; other systems may adjudicate upon them separately.

It is an axiomatic feature of some legal systems that the law recognises that the enhanced standard of proof required to justify conviction of a criminal offence and punishment by the state does not apply except to the verdict of guilty or not guilty. Elsewhere, the standard of proof is lower, often on the balance of probabilities. There is a well-understood principled basis for this difference. In criminal proceedings the chief object is the punishment of the guilty. Where the state seeks against an individual a conviction and punishment the individual is entitled to the benefit of a reasonable doubt: thus acquittal may well be in dubio pro reo, rather than involve a positive finding that the act alleged was not performed. That this should be so is a proper reflection of the gravity of a criminal conviction. Where, on the other hand, the issue arises between citizens of equal standing before the law, the object is not punishment but compensation or vindication and it unfairly constrains the rights of the claimant if he can succeed only if all reasonable doubt is eliminated. Likewise, the object of professional disciplinary proceedings differs from that of criminal proceedings; where the objective is the protection of the public from unsuitable practitioners it is legitimate and principled to give that protection where it is demonstrated to be more likely than not that it ought to be provided. A fortiori, where the object of proceedings is the protection of the vulnerable, typically but not only children, the criterion for decision is the best interests of the vulnerable and to limit protective orders to cases where maltreatment has been proved beyond reasonable doubt would be inconsistent with that ruling principle.

The three legal systems operating in the United Kingdom all depend upon this marked and principled difference between proof beyond reasonable doubt as a minimum for conviction and punishment and proof on the balance of probabilities in most other areas of adjudication. ...

Once the difference in standard of proof is recognised, it is plain that those proceedings to which the civil standard apply simply cannot be governed also by the criminal standard, nor thus by the verdict of the criminal court, even if the same factual issues arise, and even if the evidence is the same. Discussions about the scope of article 6(2) must necessarily accommodate this fact.”

Lord Hughes then considered a long line of Strasbourg jurisprudence, culminating in Orr v. Norway, no. 31283/04, 15 May 2008, which concerned a civil claim for compensation by a woman who claimed that she had been raped by an acquitted defendant. He observed:

“If, now, scenarios of this kind are tested against the Grand Chamber’s statements of principle in Allen at para 104 - for which see para 99(c) above - it would seem likely if not inevitable that article 6(2) would now be held to apply to such a civil claim for damages by a rape complainant, whether heard alongside the criminal trial or separately as it would be - and is - in any of the UK jurisdictions. The same would apply to care proceedings in which the issue was an allegation of abuse made against an acquitted accused. The judge trying such a civil claim, or such a care case, may well have to examine the evidence on the criminal file. He will certainly have to assess the accused’s participation in the events leading to the criminal charge. However, if article 6(2) really does apply to such a claim it is simply impossible for the judge in either kind of proceeding to give judgment after the accused has been acquitted. Semantic adjustment of his judgment is not an option. He has to make findings about the conflicting evidence on what occurred. He has to do so both for civil liability and to assess the level of damages. And the care judge must make findings of fact in order to justify his conclusion as to the risk of significant harm which the child faces. Neither can do other than make findings about whether the rape, or the abuse, took place. It matters not an ounce whether the judge calls it rape, or forced sexual intercourse, or abuse, and he cannot call it something which it is not. In a tort claim the tort about which he must make a finding is co-terminous in most cases with the crime; even any plea of implied consent will correlate essentially with the criminal defence of reasonable belief in consent. In a care case, it is facts constituting criminal offences which justifies the making of the care order. If article 6(2) does indeed apply to such proceedings, complainants, or public care authorities, might well consider themselves better served by not making a complaint to the police. Such allegations are notoriously difficult for juries to decide, unless there is some independent evidence beyond the word of the only two people typically present. If article 6(2) applies, an acquittal, always a possibility, will bar a finding of rape in a subsequent civil case, and thus bar the claim for compensation, and similarly with a care decision. In the absence of a prosecution, article 6(2) would presumably become irrelevant. But the public interest is unequivocally in cases of this kind being properly investigated by the police, and, if the evidence offers a reasonable prospect of conviction, in their being brought to trial.

The present case is not of course one of a civil claim for damages coming after a criminal prosecution. But consideration of such a case, together with the plain difficulties which have attended the Strasbourg court’s conscientious efforts to extend the applicability of article 6(2), demonstrates that article cannot sensibly apply beyond the criminal trial and the investigation which precedes it. The objective of not undermining an acquittal which underlies the suggested gloss on article 6(2) - see para 99(b) above - can and should properly be maintained but it means that the acquitted accused must be recognised as unconvicted, immune from punishment by the state and from characterisation as a criminal, but not that he escapes all consequences of the ordinary application of his country’s rules as to evidence and the standard of proof outside criminal trials. Powerful pleas to that effect by Judge De Gaetano in both Ashendon and Jones v United Kingdom (2012) 54 EHRR 13 and Allen, and by Judge Power in (Application No 45482/06), 18 January 2011, properly reflect the correct analysis of article 6(2).”

In his view, such an analysis was consistent with the wording of Article 6 § 2; the co-existence in Article 14(2) of the ICCPR of a right to be presumed innocence with Article 14(6) which gave a more restricted right to compensation for certain kinds of miscarriage of justice; the similar co‑existence of Article 6 § 2 with Article 3 of Protocol No. 7; and the considered view of the UNHRC in WJH v. the Netherlands (Communication 408/1990 [1992] UNHRC 25) that the presumption of innocence in Article 14(2) ICCPR applied only to criminal proceedings and not proceedings for compensation.

As for the limited right to public compensation for those prosecuted and acquitted which is recognised in international law, he continued:

“It is easy to understand why section 133(1ZA) can at first sight be seen as a reversal of the criminal onus of proof, and thus as inconsistent with article 6(2). In reality, however, it is no such thing. By the time section 133(1ZA) comes into consideration the erstwhile accused is by definition no longer facing any criminal charge in any sense, whether the autonomous one applied in the Strasbourg jurisprudence or any other. His conviction has been quashed. He is in no danger of conviction or punishment. Nor is he in any danger of any official body treating him as if he were still convicted or liable to punishment. All that is happening is that he is seeking to bring himself within the (legitimately) restricted eligibility requirements for compensation. That does not put his guilt or innocence in issue; he remains unconvicted and unpunished whether eligible or not, and no one will be entitled to say, if he cannot prove on the balance of probabilities that he is eligible, that he is guilty; at most all anyone could say is that his exoneration has not conclusively been proved. The terms of article 14(6) of the ICCPR, which section 133 seeks to implement in English law, make plain that eligibility depends on it being conclusively shown that a miscarriage of justice has occurred. A decision that this has not conclusively been shown is not at all the same as a finding of guilt, nor does it in any sense undermine the quashing of the conviction. As the facts of Allen show, a conviction may well be quashed on the grounds that it is not safe, without any implicit or explicit finding as to guilt or innocence: see Allen at paras 127, 131-132 and 134‑135. An English lawyer might baulk at the assertion in para 127 that the appellant in that case had not been ‘acquitted on the merits’ since he or she would say that a decision that the conviction is unsafe is indeed a judgment on the merits, but the sense of the court’s judgment is clear: those adjudicating on the question of compensation ‘did not comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative of the applicant’s guilt or innocence.’ (para 134). This will be equally true whenever a claimant, seeking compensation after the enactment by Parliament of section 133(1ZA) fails the eligibility test which it creates.”

Therefore, while Lord Hughes acknowledged that the court should follow any clear and constant jurisprudence of the Strasbourg Court, he did not consider that in this instance such clear and constant jurisprudence existed:

“In accordance with its usual practice, the Strasbourg court has often repeated, usually in identical language, the key propositions which are once again propounded in Allen and which are summarised at para 99 above. To the extent that they are oft repeated, they are no doubt ‘constant’. To say that they are clear is, on inspection, much more difficult. As appears from the brief survey above they create considerable difficulties in application, frequently leading either to inconsistent outcomes or to over-sophisticated semantic analysis in an effort to achieve the right result. It seems to me incumbent on this court to stand back and re-assess the a priori assumption that has been made that the presumption of innocence, and the critical requirement to respect acquittals or reversals of convictions, extends to preventing any comment by any court ‘in any other proceedings of whatever nature’ (Vanjak) which assesses conduct which was in question also in the criminal proceedings. Proper respect for acquittal does not require this. It requires that the erstwhile accused is treated as acquitted, not that his conduct cannot fall for examination in other proceedings where the test is quite different from the criminal standard of proof.”

Lord Reed and Lord Kerr dissented. Lord Reed, with whom Lord Kerr agreed, considered that the Grand Chamber’s conclusion in Allen was carefully considered and based on a detailed analysis of the relevant case‑law. In this regard, it was consistent with a line of authorities going back decades. Moreover, it was intended to provide authoritative guidance and it has subsequently been followed in numerous judgments. It did not involve any principle of English law, or any oversight or misunderstanding. On the other hand, he considered the reasons given in R(Adams) to support the conclusion that Article 6 § 2 had not application to section 133 to be less than compelling. He therefore considered that decisions taken under section 133 fell within the ambit of Article 6 § 2.

Lord Reed also considered that section 133(1ZA) was incompatible with Article 6 § 2 of the Convention. Contrary to the lower courts, he did not believe that a distinction could be made between a requirement that innocence be established, and a requirement that innocence be established by a new or newly discovered fact. Furthermore, while in Allen the Grand Chamber did not consider that the refusal of compensation in cases falling within category 3 in R(Adams) was necessarily incompatible with Article 6 § 2 of the Convention, a problem arose where compensation was confined to persons in category (1) (as opposed to categories (1) and (2)). In such a case, the Secretary of State was effectively required to decide whether persons whose convictions were quashed because of fresh evidence had established that they were innocent. In Lord Reed’s view, if the appellant’s criminal guilt was to be assessed, he or she should be entitled under the Convention to the protections afforded in criminal proceedings, including the presumption of innocence.

In reaching this conclusion, Lord Reed rejected an argument by the Secretary of State that a violation of Article 6 § 2 was avoided by the inclusion of a paragraph in the letter to unsuccessful applicants stating that nothing therein was intended to undermine the decision to quash the conviction, and that the applicant was presumed to be, and remained, innocent of the charges against him or her. According to Lord Reed,

“[t]he application of a test which in substance infringes the presumption of innocence is not rendered acceptable by the addition of words intended to avoid a confliction with article 6(2), if the overall effect is nevertheless to undermine a previous acquittal.”Relevant domestic law and practice

Section 133 of the Criminal Justice Act 1988 (“the 1988 Act”) was amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).

Full details of the relevant law and practice prior to the amendment can be found in Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013. In summary, however, section 133(1) as originally enacted provided that:

“Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.”

The term “miscarriage of justice” was not defined in the statute when originally enacted. As a consequence, there followed a series of cases in which the courts sought to interpret the meaning of the term, culminating in the Supreme Court judgment in R(Adams) v. Secretary of State for Justice [2011] UKSC 18. In that case, four categories of case were considered as candidates for satisfying the statutory definition. These were (1) where the fresh evidence showed clearly that the defendant was innocent of the crime of which he had been convicted; (2) where the fresh evidence so undermined the evidence against the defendant that no conviction could possibly be based upon it; (3) where the fresh evidence rendered the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and (4) where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. The Supreme Court held, by a majority of five Justices to four, that the true meaning of “miscarriage of justice” included cases in categories (1) and (2) only. The minority would have restricted the term to category (1) cases only.

Seven Justices further held that Article 6 § 2 of the Convention had no bearing on the interpretation of section 133 of the 1988 Act as section 133 constituted a lex specialis. According to the Strasbourg case-law, the principle to be applied was that it was not open to the State to undermine the effect of the acquittal; however, a refusal of compensation under section 133 on the basis that the innocence of the person had not been demonstrated clearly, or that it had not been shown that the proceedings should not have been brought at all, did not have the effect of undermining the acquittal. Whatever the precise meaning of “miscarriage of justice”, a right to compensation was not conditional of proof of innocence. The presumption of innocence would not, therefore, be infringed.

The amendment introduced by the 2014 Act inserted a new section 133(1ZA) which defined “miscarriage of justice”:

“For the purpose of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection 6H applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).”

COMPLAINT

The applicants complained under Article 6 § 2 of the Convention that the application of the test in section 133(1ZA) of the Criminal Justice Act 1988 breached the presumption of innocence.

QUESTION TO THE PARTIES

Has there been a violation of Article 6 § 2 of the Convention, by virtue of the application of section 133(1ZA) of the Criminal Justice Act 1988?

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