Tuesday, 8 May 2018

Is Injustice piled upon injustice? New evidence cases and compensation.

Compensation (or the lack of it) for miscarriage of justice is again in the news.  Legal analysis begins with the International Covenant on Civil and Political Rights (ICCPR) Article 14(6)  which was made effective in English law by the Criminal Justice Act 1988 section 133 (as amended by the Anti-social Behaviour, Crime and Policing Act 2014 section 175 ).  The law gives a right to compensation for miscarriage of justice only in cases where a new or newly discovered fact shows conclusively that there has been a miscarriage of justice but even this compensation is very difficult to obtain.  This post looks at two such cases which are currently before the Supreme Court of the UK.

Victor Nealon served 17 years in prison for attempted rape.  He was released in 2014 after the Court of Appeal (Criminal Division) quashed his conviction because fresh DNA evidence showed that someone else was the attacker.  (Judgment 28th March 2014).  Also, there were some serious questions about the identification evidence but the DNA evidence led the Court of Appeal to conclude that, although the prosecution case was not demolished (para 35), a jury might reasonably have reached a different verdict.

Sam Hallam was 17 at the time of his conviction for murder and was "detained at Her Majesty's pleasure".  He served 7 years and was released in 2012 when his conviction was quashed.  (Judgment 17th May 2012).   Identification evidence was at the heart of the case against Mr Hallam.  The appeal arose principally on the basis of fresh evidence - (see para 47).

BOTH cases illustrate the valuable work of the Criminal Cases Review Commission (CCRC) in bringing cases to appeal.

A reading of the Court of Appeal judgments quashing the convictions of the two men shows that the two men were not totally exonerated.  Their convictions were considered to be "unsafe."  

Both men sought compensation for miscarriage of justice under the Criminal Justice Act 1988 s.133.

The Secretary of State rejected their claims for compensation by applying subsection 1ZA which applies where there is a new or newly discovered fact.

“ ... there has been 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 .....”

In other, simpler, words there is to be no compensation unless the claimant can establish innocence.

Normally it is for the State to establish guilt and, in English law, that requires proof beyond a reasonable doubt or, as it is commonly put these days, so that the jury (or Magistrates) are sure of guilt.

Over 8th and 9th May 2018, the Supreme Court is hearing appeals:

UK Supreme Court - Nealon - Judgment appealed [2016] EWCA Civ 355

UK Supreme Court - Hallam - Judgment appealed [2016] EWCA Civ 355

Unsurprisingly, the question for the Supreme Court is whether section 133(1ZA) is compatible with the presumption of innocence guaranteed by 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."

A case likely to figure prominently in the appeals is R (Adams) v Secretary of State for Justice [2011] UKSC 18 and see the summary HERE.  In this instance the Supreme Court considered the case of Adams whose conviction for a 1993 murder was quashed in 2007.  Also dealt with were the cases of Eamonn MacDermott convicted for a 1979 murder in Northern Ireland and Raymond McCartney convicted convicted for 2 murders in Northern Ireland in 1979.  Their convictions were quashed in 2007.  The Supreme Court unanimously dismissed the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allowed the appeals of Mr MacDermott and Mr McCartney.

An important point about the Court's decision in Adams is that a majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to cases where a new fact or facts showed a defendant to be innocent of the crime as that would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt.   A wider scope was plainly intended at the time of the drafting of Article 14(6).  Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for ‘miscarriage of justice’ in s 133 (in more robust terms than category 2) was as follows:   ‘A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’

Nealon and Hallam - important appeals:

Here is an appeal going to the very centre of what justice is to mean in practical terms.   If a conviction is unsafe then the State has failed to discharge its responsibility to prove guilt and, in law, the person is to be regarded as innocent.  However, the convicted person may well have spent many years in prison.

The present appeals will be heard by a court comprising seven Justices.  (Intereresting the earlier Adams case was heard by nine).


In Allen v United Kingdom [2013] ECHR 678, the Grand Chamber held that Article 6(2) is engaged in this type of case but, on the facts in Allen, there was no violation.  The Allen case arose before section 133 of the 1988 Act was amended.  At para 103 the court commented - " The present case concerns the application of the presumption of innocence in judicial proceedings following the quashing by the CACD of the applicant’s conviction, giving rise to an acquittal. Having regard to the aims of Article 6 § 2 discussed above (see paragraphs 92-94) and the approach which emerges from its case-law review, the Court would formulate the principle of the presumption of innocence in this context as follows: the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected. This overriding concern lies at the root of the Court’s approach to the applicability of Article 6 § 2 in these cases."

Having set the scene - more will follow.

Previous posts are at 12th April 2016 and 14th June 2015 and, re the Adams case, 11th May 2011.


Justice - Report - Supporting Exonorees

View the Supreme Court hearings 8th and 9th May.

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