In a decision handed down a few weeks ago, in the joined cases R (Hallam) v Secretary of State for Justice; R (Nealon) v Secretary of State for Justice  UKSC 2, the UK Supreme Court addressed whether the UK’s scheme for compensating victims of a miscarriage of justice is compatible with the presumption of innocence, as guaranteed by Article 6(2) of the European Convention on Human Rights (ECHR). By a majority of five to two, the Court held that the scheme was compliant. It is submitted, however that the reasoning in the majority judgments are not wholly coherent or convincing.
It happens from time to time that a person’s conviction is overturned after he has served a considerable period of time in prison for an offence of which, in the eyes of the law, he is not guilty. Inevitably the question arises whether, or to what extent, such a person should be awarded financial compensation. The International Covenant on Civil and Political Rights (ICCPR) imposes an obligation on States to provide compensation for a person convicted of a criminal offence where he succeeds subsequently in having that conviction overturned because a new fact shows conclusively that he has been the victim of a miscarriage of justice. A similar obligation is contained in Protocol 7 to the ECHR.
Inevitably, such provisions raise the difficult question of what constitutes a miscarriage of justice for the purposes of compensation where a conviction has been quashed consequent on the emergence of a new fact. Should it be confined to situations where a new fact (or newly discovered fact) shows that the person did not commit the crime in question? An example might be newly discovered DNA evidence or a cast-iron alibi exonerating the convicted person. Alternatively, should a miscarriage of justice extend to situations where the conviction is subsequently quashed because a new fact raises at least a reasonable doubt over his guilt, but falls significantly short of establishing that he did not commit the offence? Or, should the cut-off point fall somewhere in between these two situations? If the bar is set too high, many individuals who are factually innocent will be denied compensation because of the inherent difficulties in proving factual innocence. On the other hand, if the bar is set too low, it will open the door to some factually guilty people qualifying for compensation.
A separate, but related, question is whether compensation should extend to situations where the conviction is quashed because the investigation, prosecution or trial was tainted by egregious corruption, even though there is still sufficient admissible evidence to warrant a conviction?
Pursuant to its obligation under the ICCPR, the UK provided for a compensation scheme in the Criminal Justice Act 1988. It applies to persons who were convicted of a criminal offence only to have that conviction quashed on an appeal out of time as a result of a new or newly discovered fact. Under the scheme, it is not sufficient to show that a new fact has resulted in the quashing of the conviction without an order for a re-trial. The applicant must also persuade the Secretary of State that the new fact shows conclusively that he has been the victim of a miscarriage of justice.
As originally enacted, the 1988 Act did not define a miscarriage of justice. In Adams (2011), the Supreme identified four possible categories of progressively wider scope: 1. the new fact shows clearly that the defendant is innocent of the crime of which he was convicted; 2. the new fact so undermines the evidence against the defendant that no conviction could possibly be based upon it; 3. the new fact renders 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. 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.
By a five to four majority, the Court in Adams confined a miscarriage of justice for the purposes of the compensation scheme to categories 1 and 2. It seems that the minority would have been more stringent and confined it to category 1. Even on the majority approach, many persons who had served long prison sentences for offences, of which they were not guilty in the eyes of the criminal law, would not be considered to have suffered a miscarriage of justice to qualify for compensation within the scope of the scheme.
Despite the arguably high bar for compensation set by the majority in Adams, Parliament raised it even higher by an amendment effected by the Anti-Social Behaviour, Crime and Policing Act 2014. This confines a miscarriage of justice to situations where the new fact shows beyond a reasonable doubt that the applicant did not commit the offence (effectively category 1 situations). That, of course, looks very like a requirement on the acquitted applicant to prove his innocence beyond a reasonable doubt. In Hallam and Nealon, the Supreme Court was asked to rule on whether the new test was compatible with the Art.6(2) ECHR presumption of innocence which states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The applicant in Hallam had been convicted of murder and related offences. He had spent almost eight years in prison before his conviction was quashed on the basis of a new fact that undermined the prosecution case to the extent that the conviction was unsafe. Critically, the new fact was not sufficient to prove beyond a reasonable doubt that the applicant did not commit the offence (category 1). Nor was it sufficient to establish that the evidence against the applicant was such that no conviction could possibly be based upon it (category 2). In effect it was a category 3 situation. Applying the statutory test, the Secretary of State refused the application for compensation on the basis that the new fact did not show beyond a reasonable doubt that the applicant had not committed the offence.
The applicant in Nealon had his conviction for attempted rape quashed by the Court of Appeal on the basis of a new fact after he had served 17 years in prison. As with Hallam, the Court of Appeal found that the new evidence did not completely demolish the prosecution’s case, but substantially undermined it to the extent that the applicant’s conviction was unsafe. In other words, it was a category 3 case. His application for compensation was also refused by the Secretary of State on the basis that the new fact did not show beyond a reasonable doubt that the applicant had not committed the offence.
There was a general consensus in the Supreme Court in these cases that setting the test at the category 3 threshold would not conflict with the presumption of innocence. An acquitted person’s innocence is not necessarily called into question by saying that there remained evidence upon which a jury might convict. This had effectively been accepted by the Grand Chamber decision of the European Court of Human Rights (ECtHR) in Allen v United Kingdom (2013). Although the Supreme Court in Hallam and Nealon was addressing whether the current category 1 threshold violated the presumption of innocence, the real issue was whether the threshold should be set at category 2; namely that the new fact had demolished the case against the person to the extent that no conviction could possibly be based upon it? The ECtHR in Allen gave a very strong indication that it would be a violation of the presumption of innocence to set the threshold higher at category 1 by requiring the applicant to prove that he did not commit the offence.
By a majority of five to two, the Supreme Court held that the current scheme (confining compensation to applicants who could show that they did not commit the offence) does not conflict with the presumption of innocence. However, the majority judges did not speak entirely with one voice in their reasoning. Four of them did not feel bound to follow the ECtHR lead in Allen, as they considered that its jurisprudence on the matter was not yet settled. The point at issue had yet to be the subject of a direct decision by the ECtHR and, at least some of them (Lord Mance and Lady Hale), were not confident that the ECtHR would find a violation of the presumption of innocence if called upon to decide it.
Lord Mance would have been content to dismiss the applications for compensation in both cases because neither the test, nor the decisions of the Secretary of State refusing compensation, involved any suggestion that the applicants should have been convicted. Nevertheless, he went on to consider whether it would be contrary to the presumption of innocence to confine the compensation scheme to category 1 situations.
He deduced from its decision in Allen that the ECtHR would adopt category 2 as the cut-off point. In other words, there would not necessarily be any violation in requiring an applicant to persuade the Secretary of State that the new fact so undermined the evidence against him that no conviction could possibly be based upon it. If that was compatible with the presumption of innocence, he could see no reason why it would be incompatible to require the applicant to show that the new fact established his innocence (category 1). Lord Mance could see little, if any, practicable distinction between the two categories from the perspective of the presumption of innocence. Lord Lloyd Jones and, arguably, Lord Wilson, endorsed his interpretation.
It is submitted that there are a few problems with Lord Mance’s reasoning. The ECtHR has yet to rule on whether it would be compatible with the presumption of innocence to require an applicant to persuade the Secretary of State that the new fact so undermined the evidence against him that no conviction could possibly be based upon it. That issue did not arise for decision in Allen. Moreover, the mere fact that the ECtHR deemed category 3 compatible with the presumption of innocence does not necessarily preclude it from finding category 2 incompatible. The categories were formulated by Mance himself from the Supreme Court judgments in Adams. They do not possess a definitive status, and there is no reason why they might not be recast by the ECtHR when a category 2 type situation arises for decision before it.
Lord Hughes took a slightly different approach. He proceeded on the basis that the compensation scheme and the presumption of innocence are directed to two different issues. The former is concerned with whether the applicant is exonerated on the facts (and satisfied the other conditions for eligibility), while the latter is concerned with the proof of guilt beyond a reasonable doubt in a criminal trial. In his view, the presumption of innocence does not protect an acquitted person’s conduct from subsequent examination in civil proceedings conducted on a lesser standard than proof beyond a reasonable doubt. He went on to say that an applicant’s presumption of innocence was not infringed by requiring him to prove, for the purposes of compensation, that he was innocent of the offence. Innocent in the context of the compensation scheme meant exoneration on the facts while, in the context of the presumption, it means not convicted or not guilty in accordance with the criminal standard of proof beyond a reasonable doubt. It is submitted that this reflects a highly artificial approach to the substantive issues at stake. Arguably, it also raises the peculiar prospect that the category 2 situation could violate the presumption of innocence even though a category 1 situation did not.
Lady Hale seemed more concerned with how a category 1 or category 2 test was applied in an individual case, as distinct from their formulation. For her, the key issue was whether the language used in determining a claim for compensation avoided any assertion to the effect that the accused was guilty of the offence. Indeed, she felt that it would not be impossible to explain a refusal of compensation under the current test (category 1) without necessarily using language that casts doubt on the acquittal. In other words, it did not necessarily violate the presumption of innocence. Ultimately, however, she felt it would be better to leave the matter until a category 2 situation arose where it might be more difficult to explain the difference with category 1 without necessarily using language that casts doubt on the acquittal. Since the facts of the instant cases were category 3 situations, she felt it was not necessary to address the matter.
Lord Reed (with whom Lord Kerr essentially agreed) delivered the main judgment for the minority. He relied heavily on the guidance offered by the ECtHR in Allen to the effect that requiring an applicant to establish that he did not commit the offence would be incompatible with the presumption of innocence. He explained that a decision by the Secretary of State that a new fact did not establish the applicant’s innocence beyond a reasonable doubt would be tantamount to casting doubt on his acquittal in the criminal proceedings. Accordingly, the test would almost inevitably provoke a clash with the applicant’s presumption of innocence. Lord Reed doubted very much whether the current test would pass muster with the ECtHR.
The minority’s interpretation is surely more in tune with the conventional understanding of the presumption of innocence. The majority’s interpretation means that compensation will be refused where the acquitted applicant can do no more than prove beyond a reasonable doubt that a new fact shows that he should never have been convicted. For the Secretary of State to say that he or she is not persuaded beyond a reasonable doubt that such an applicant is innocent surely raises doubts over the applicant’s acquittal. It is difficult to accept that this would not violate the applicant’s presumption of innocence. It also means that many persons who are factually innocent of a crime for which they spend many years in prison will be denied compensation, even though a new fact shows that they should never have been convicted in the first place.
It must be acknowledged that the interaction between an acquittal (or the quashing of a conviction) and subsequent proceedings in the same matter presents complex challenges for the presumption of innocence. This is due in large measure to the diversity of situations in which the issue can arise. These range over applications by the acquitted person for costs or compensation for time spent in prison; claims for compensation by a third party against the acquitted person; disciplinary action against the acquitted person; child care proceedings; and more besides. Attempting to deal with these situations, and the different factual permutations within each, on a case by case basis as they arise has resulted in a complex, and not always coherent, body of case law on the presumption of innocence. It is difficult to extract clear and comprehensive principles from it. Admittedly, the decision of the Grand Chamber of the ECtHR in Allen has gone some distance towards providing a degree of principled coherence from the case law, but there is still some distance to go. Unfortunately, the judgments in the Supreme Court in the Hallam and Nealon cases have not made a significant contribution in this direction. Further clarification will be required from the ECtHR.
Finally, it is worth adverting to a related issue that was discussed substantively in most of the judgments in the Hallam and Nealon cases. This concerns whether the Art.6(2) presumption is applicable at all to a compensation procedure that is triggered later in time to, and separate from, the criminal proceedings in question. At least some of the judges were inclined to the view that it had no application as it applied to “a person charged with a criminal offence …” and, as such, had no application after the charge had been finally disposed of in the criminal proceedings. The Supreme Court’s decision in Adams, for example, has been interpreted to the effect that it is not so applicable. The later decision of the ECtHR in Allen, however, was emphatic that the presumption of innocence is not confined to the criminal proceedings. It extends to subsequent proceedings, and to the actions and decisions of public officials, in which the innocence of a person is called into question after he has been acquitted or had his conviction quashed. The justification proffered is the need to ensure that the protection afforded by the presumption is not rendered illusory or theoretical. In the Hallam and Nealon cases, it is not always clear whether the majority judges are addressing the applicability issue or the violation issue. What is clear is that at least some of them are distinctly uncomfortable with the ECtHR’s position on the former.