Sunday, 14 June 2015

Compensation for Miscarriage of Justice

UPDATE 12th April 2016: R (Hallam and Nealon) v Secretary of State for Justice [2016] EWCA Civ 355.  The appeal from the decision discussed below.

Original Post:

In some (currently very limited circumstances), the State is obliged to pay compensation for miscarriage of justice.  In enacting the Anti-social Behaviour, Crime and Policing Act 2014, the government managed to persuade Parliament to limit the law so that compensation is only payable if a NEW fact (or some NEWLY discovered fact) demonstrates, beyond a reasonable doubt, that the individual did not commit the offence.  In essence, semantics apart, this requires proof of innocence with a heavy burden - (effectively, the criminal standard reversed) - placed on the individual claiming compensation.  

It might well be thought that the refusal of compensation
amounts to the State casting doubt on the legal innocence of the individual and that, as a result, Article 6(2) of the European Convention on Human Rights could be engaged - "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

A recent case on this is - R (Nealon and Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin) - where the Secretary of State refused compensation to two men following the quashing of their convictions by the Court of Appeal. The Minister argued that compensation was not payable because their cases did not come within the Criminal Justice Act 1988 s133  as it stood following amendment by the Anti-social Behaviour, Crime and Policing Act 2014 section 175

Sam Hallam was convicted of the murder on 11 October 2004 of Essayas Kassahun in London.  In 1997, Victor Nealon was convicted of attempted rape.   The cases of the two men were referred to the Court of Appeal by the Criminal Cases Review Commission.

The law, as it now stands, demonstrates a very parsimonious approach to those who have lost their liberty for lengthy periods even though their convictions have subsequently been shown to be unsafe.  Being "unsafe" is enough to get a conviction quashed but it is not enough for compensation to be payable.  Effectively, innocence has to be demonstrated. 

The Anti-social Behaviour, Crime and Policing Bill was examined in detail by Parliament's Joint Human Rights Committee which reported that

"In our view, requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence, which is protected by both the common law and Article 6(2) ECHR. We recommend that clause 143 be deleted from the Bill because it is on its face incompatible with the Convention."  See the Human Rights Joint Committee 4th Report (11th October 2013)

In the Nealon and Hallam case, the court accepted the government's argument that the Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] UKSC 18 was binding authority for the conclusion that Art 6(2) has no bearing on the law, even though that case was decided before the Criminal Justice Act 1988 was amended by the 2014 Act.

The present state of English law appears to be at odds with European Court of Human Rights statements about Article 6(2) as expressed in Allen v United Kingdom (25424/09). decided by the Grand Chamber in 2013.  In that case, Lorraine Allen was convicted at Nottingham Crown Court of the manslaughter of her four-month old son, Patrick. She was sentenced to three years’ imprisonment.  Her conviction was quashed but she was refused compensation.   

At Strasbourg, the government argued that a refusal of compensation would be compatible with Article 6(2) provided that it was clear from the language used that no guilt could be imputed to the applicant.  The Grand Chamber went on to hold that that Article 6(2) was applicable but was not violated in the actual case.

: Legal Materials :

The following materials are included for those interested in pursuing this topic further.


A.  The United Kingdom has accepted the International Covenant on Civil and Political Rights 1966.  Article 14 is concerned with criminal justice.  Article 14(2)states:-

'Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.'  The presumption of innocence is a common law principle of criminal justice and it also appears in the European Convention on Human Rights Article 6(2) - "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

In the event that a person is convicted but the conviction is later quashed on appeal, Article 14(6) applies:-

'When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.' (My emphasis).

B.  The Criminal Justice Act 1988 s133 was enacted to give effect in domestic law to Article 14(6).  As originally enacted, it stated - s.133(1):

"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 original section 133 did not contain any definition of the term miscarriage of justice.  

C.  The Anti-social Behaviour, Crime and Policing Act 2014 section 175 inserted a definition of "miscarriage of justice" into the Criminal Justice Act 1988.  The definition is:

Section 133(1ZA) - ' ... a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales ..... , if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence .....'

D.  The Explanatory Notes to the 2014 Act give more information as to why Parliament inserted this definition.  Noting that section 133 had produced a body of case law, the explanatory notes go on to say:

'Prior to May 2011, the test applied was that of “clear innocence”, following the judgment of Lord Steyn in R v Secretary of State for the Home Department ex parte Mullen [2004] UKHL 18.  However, in May 2011, the majority of the Supreme Court in R(Adams) v Secretary of State for Justice [2011] UKSC 18 held that the meaning of miscarriage of justice under section 133 was wider than that.  Lord Phillips identified two categories of case which would qualify as miscarriages of justice: the first, a case where the new (or newly discovered) fact showed the applicant to be “clearly innocent”; the second, where the new fact “so undermines the evidence against the applicant that no conviction could possibly be based on it”. In January 2013, the Divisional Court, in the case of R(Ali and others) v Secretary of State for Justice [2013] EWHC 72 (Admin), redefined the second category test to be: “has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered?” In February 2014, on appeal, the Court of Appeal held that the definition of a miscarriage of justice as articulated by the majority of the Supreme Court in Adams was to be preferred over the Divisional Court’s."

E.  European Court of Human Rights -  Allen v UK - Grand Chamber judgment 12th July 2013 and also see The Justice Gap - allen case

F:  Cases

R v Secretary of State for the Home Department ex parte Mullen [2004] UKHL 18.

R(Adams) v Secretary of State for Justice [2011] UKSC 18 and UK Supreme Court Blog - commentary on the Adams case

G: Articles

Garden Court North Chambers 3rd June - prior to the High Court's judgment in Nealon and Hallam.

The Justice Gap - Mark Newby looked at the Nealon and Hallam case prior to the High Court judgment - The Innocent test: a question of language







1 comment:

  1. Good article! Thank you so much for sharing this post. Your views truly open my mind.

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