Victims of miscarriage of justice – a long battle ahead

For victims seeking compensation following a miscarriage of justice, the battle continues. This is the upshot of the recent High Court judgment in the cases of Victor Nealon and Sam Hallam, who had sought to judicially review the Justice Secretary’s refusal to grant them compensation. Earlier this month it was announced that both men are appealing the decision. The appeal will to go to the Court of Appeal, then likely to the Supreme Court and possibly on to Strasbourg. The Human Rights Act 1998 is the only tool they and countless others like them can now use to seek the compensation they deserve.

The Court of Appeal Criminal Division has said that new evidence that has come to light since their convictions means the convictions of both men are unsafe. Mr Nealon was convicted of attempted rape in January 1997 and sentenced to a discretionary life term with a minimum of seven years. He maintained that he was innocent and had been wrongly convicted. There were inconsistencies in the original identification evidence but it was only when further forensic tests were carried out on the victim’s clothing, at Mr Nealon’s request, that it emerged that another male’s DNA was on her clothing. Most significantly the DNA was present in the specific areas where the woman alleged she had been “mauled” during the incident and so Mr Nealon was given permission to appeal. In December 2013 he was acquitted on the basis that the fresh DNA evidence rendered his appeal unsafe.

Mr Hallam was convicted of murder in 2005 and sentenced to life imprisonment. He denied having been a part of the gang who were responsible for the attack, or of having been at the scene. He was acquitted in May 2012 on the basis of fresh witness evidence, which supported his account that he had not been at the scene, and analysis of his mobile phone which showed where he had actually been on the evening of the murder.

Both men sought compensation under s133 of the Criminal Justice Act 1988 but the Justice Secretary refused to grant them any. This was on the basis they had not suffered a miscarriage of justice as defined by s133 because they had not proved beyond reasonable doubt that they did not commit the offences.

The test for applying for compensation for a miscarriage of justice under s133 of the Criminal Justice Act 1988 is a stringent one; most people who are acquitted on appeal – even if they have served months or even several years on remand and/or while appealing their sentence – have no right to compensation. In order to qualify an applicant has to have appealed out of time (so not within the normal appeal timeframe) and also – and this is significant – have been acquitted due to a new or newly discovered fact (so something which was not known about at the time of the original conviction). They have to apply within two years of acquittal.

The critical limb of the test and that which has caused by far the most controversy and litigation is that an applicant has to show beyond reasonable doubt, to the satisfaction of the Justice Secretary, that they “did not commit the offence”. This statutory test introduced in 2014, under the Anti-Social Behaviour Crime and Policing Act 2014, is more stringent than the test which existed before; essentially it means that unless a person can prove conclusively that they are innocent, they cannot get compensation.

There is a huge practical problem with this test. Criminal Courts do not determine innocence; they determine guilt. And while, when acquitting a person, the court could technically make comments about innocence, this is not the norm and would be highly unusual. What a Criminal Court will usually do is say a conviction is not safe, meaning that based on the evidence, it cannot be proven beyond reasonable doubt that a person has committed the offence with which they have been charged. In a substantial number of cases there is no re-trial; the person has already served all or a substantial proportion of their sentence and it would not be in the public interest; so there is no full scrutiny of the evidence factoring in the new or newly discovered fact, and no determination of their innocence or otherwise. The upshot is that a person is left having been acquitted but having no arena in which to establish their innocence to the requisite standard to get compensation. And the Justice Secretary’s decision is a subjective one; his view (or that of his civil servants), factoring in all the evidence.

Frequently in our experience, the Justice Secretary reaches a view which would surprise many, relying on facts which would be inadmissible in a criminal court or on the possibility a jury might be convinced by evidence in a way which is wholly fanciful. We represent multiple victims of miscarriages of justice, and in our experience this kind of decision-making is all too common. Indeed one of Mr Nealon’s arguments before the High Court, was that the Justice Secretary’s decision to refuse him compensation was unreasonable (cherry picking aspects of the forensic expert evidence and what the Court of Appeal had said to support a refusal of compensation).

The other issue raised by both Mr Nealon and Mr Hallam in their judicial reviews, one of huge constitutional significance, is the right to be presumed innocent. They argued that following their acquittals they have the right to be presumed innocent under Article 6(2) of the ECHR; this is a fundamental right of every person who has not been convicted of an offence. Their argument was the refusal of compensation, based on the fact they had not proved their innocence to the requisite standard, breached that right.

Ms Allen, convicted of murdering her baby in one of the shaken-baby-syndrome cases, and acquitted years later when it emerged that the expert evidence could not be relied on, has been consistently denied any form of redress by the Justice Secretary. She took her case to Strasbourg, arguing that the Justice Secretary’s refusal of compensation breached her right to be presumed innocent. At that point, the previous, marginally less demanding non-statutory test applied, meaning that a person could get compensation if the justice secretary was satisfied that no jury, properly directed on the evidence, could convict them based on the available evidence. The European Court found that Article 6(2) of the ECHR was engaged but not breached. This was because the test stopped short of making a person prove their innocence.

Mr Nealon and Mr Hallam tried to bring the same argument in the High Court, saying that the new test, which is stricter and does require a person to prove their innocence, not only engages but breaches Article 6(2) ECHR. The High Court effectively side-stepped the issue, doing no detailed analysis of the facts of the cases or the constitutional implications. The High Court found itself bound by the Supreme Court decision in Adams which found that Article 6(2) of the ECHR was not engaged in Miscarriage of Justice cases. Despite the fact that Strasbourg had reached a different view, the High Court declined to depart from the Supreme Court decision. The judges also refused the applicants permission for a ‘leap-frog’ appeal, meaning they could have gone straight to the Supreme Court to get the issue resolved in the highest UK court. This means that they will now have long journey to the Court of Appeal and then on to the Supreme Court, meaning it could ultimately be years before this issue is finally resolved.

In the meantime, the Human Rights Act, which is the only tool with which Mr Nealon, Mr Hallam and others like them can challenge the unfairness of the current test is under threat.

There is a real risk that, if this does go all the way to Strasbourg, and the European Court of Human Rights says that the current system breaches the right to be presumed innocent, the case will be used for political purposes to generate adverse publicity that the European Court is making the UK “pay compensation to criminals”, and as a further weapon in the armoury for pulling out of the European Convention all together. This would be a hugely retrograde step. These individuals are not criminals and should not be treated as such. They are the victims of grave miscarriages of justice and in our democracy it is vital that there is a statutory system for recompensing them for the ordeal they have