Section 133(1) of the Criminal Justice Act 1988 (CJA) provides for compensation following a reversal of a conviction or pardon. Section 133(1ZA) defines a “miscarriage of justice” as occurring when a new or newly discovered fact demonstrates that the person did not commit the offence. It requires the person to prove, for the purposes of compensation, that they were innocent. Of course, once a conviction is quashed, an individual should be presumed innocent, as they have no longer been proven guilty. Requiring an individual to prove innocence reverses this fundamental rule of justice, placing a near impossible burden on the applicant for compensation. A further difficulty with such a test is that the quashing court – the Court of Appeal Criminal Division – does not consider whether the appellant is innocent of the crime; it considers whether the conviction is unsafe. This is because the justice system determines guilt rather than innocence.
Turning to the cases under review: Mr Hallam served over seven years for a murder. His conviction was quashed on the basis of evidence that had not been disclosed to him at his trial which suggested he was not involved. Mr Nealon served 17 years for an attempted rape. His conviction was quashed on the basis of DNA evidence on an unknown male found on the victims clothing not his. Despite the strong evidence that they did not commit these crimes, they were denied compensation as they were unable to produce evidence that satisfied the Secretary of State beyond reasonable doubt that they did not commit these offences.
The cases have been through several hearings which culminated in a refusal by the Supreme Court in 2019 in a split decision in which the current President of the Supreme Court Lord Reed and the Late Lord Kerr both concluded the applicants appeals should have been allowed . There was a suggestion that the previous ruling so the ECHR were confused, yet in a previous case of Allen the Court gave a clear lead as to when a compensation scheme could call the innocence of a person in to question, and the applicants argue that the current legislation does exactly that.
Mark Newby, Solicitor for Victor Nealon said:
“How we treat the wrongfully convicted says everything about the sort of society we want to be. It should not be forgotten that the hurdle to even quash a wrongful conviction is set impossibly high and for those who have climbed that mountain it is just wrong to ask them to then scale the same mountain again and prove to the government beyond reasonable doubt that they are innocent.
If you weren’t at the scene of a murder or the DNA on a victims clothing wasn’t you but somebody else, what more should have to be said?
That is why we must now ask the European Court of Human Rights to intervene. Justice depends on it.”
And of Course, as Justice the Human Rights Charity have highlighted this is not just about compensation
Miscarriages of justice destroy lives, with individuals facing numerous difficulties on release from prison. JUSTICE’s report Supporting Exonerees: Ensuring accessible, consistent and continuing support (2018), highlights that there is no automatic accommodation, social security assistance or psychiatric assessment available to victims of miscarriage of justice. The report also records the hardship, difficulty in adjustment and trauma that victims of miscarriage of justice face for years after their release.
Justice are again intervening in this case and have made written submission to the Court as have the Northern Ireland Human Rights Commission highlighting the unique problems the test causes in Northern Ireland.
The case is advanced on a number of detailed and complex arguments but effectively it is maintained that the test does breach the presumption of innocence,
Overall it is unsustainable to reach an artificial distinction between proving innocence on the basis of the newly discovered fact and as a whole it requires the same assessment.
As Lord Kerr [ dissenting indicated ]noted there will be many who are truly innocent but are unable to establish their innocence as a positive fact, and that this must form part of the backdrop to the proper approach to the application of Article 6(2) (paragraph 202); that there is a “clear and constant” line of jurisprudence from that court which establishes that the relevant question is “whether there was a link between the concluded criminal proceedings and the compensation proceedings; and that if there is doubt as to whether he should have been acquitted, the individual will not be able to avail of the Article 6(2) protection, but if he can show that he ought never to have been charged or convicted, he will (paragraph 205).
The Court hearing in front of a panel of 17 Judges from convention countries can be watched online from tomorrow by following this link : Nealon v. the United Kingdom and Hallam v. the United Kingdom (nos. 32483/19 and 35049/19) – ECHR – ECHR / CEDH (coe.int) .
If any greater insight is required to why these cases are so important …..when you go to sleep tonight open your eyes and imagine you are in a prison cell , then think about doing the same thing for 6205 days knowing you are innocent , then imagine during those 6205 days your family and friends dying around you and not even being able to go to close family members funerals , finally imagine being suddenly told it’s all over , given a travel warrant for £46 and dumped at a railway station with no help or support or any apology …………..
We argue not only is this law inhumane, but it breaches the presumption of innocence, it was a law intended to stop legitimate claims for compensation and we hope the Court will agree that it should not stand.
ENDS
Victor Nealon is represented before the Grand Chamber by His Barristers Matthew Stanbury and David Pojur together with his Solicitor Mark Newby