R (Victor Nealon) v Secretary of State for Justice : R (Sam Hallam) v Secretary of State for Justice  EWHC 1565 (Admin), 8 June 2015 – read judgment
As Michael Gove contemplates the future of the Human Rights Act 1998, the High Court has considered how far the presumption of innocence in Article 6(2) ECHR spreads into decisions on payment of compensation for a miscarriage of justice. In doing so, Burnett LJ also managed to find some less than complimentary sentiments about the Strasbourg court’s decision-making.
Sam Hallam was convicted of murder in 2011. Victor Nealon was convicted of rape in 1997. Both successfully appealed against their convictions and then applied to the Secretary of State (‘SoS’) for compensation under s133 of the Criminal Justice Act 1988 (the ‘1988 Act’’), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘2014 Act’). Both men were refused compensation on the basis that their circumstances did not meet the s133 statutory test (as amended).
Using Burnett LJ’s words, this test, incorporating the new definition of “miscarriage of justice” added by the 1988 Act (and s133(1ZA)) of the 1998 Act), operates as follows:
… 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 the person did not commit the offence, 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 etc.
Mr Nealon and Mr Hallam argued that this test was incompatible with Article 6(2) ECHR because it violated the presumption of innocence. They argued that s133(1ZA) required a person to prove his innocence. They wanted a declaration of incompatibility. The Court was far from persuaded by these arguments.
There are a number of interesting points in this judgment (although be warned that it is sometimes difficult to follow):
- The Court was faced with a one-on-one tug of war between ECHR and domestic authority. The latter emerged the easy winner. The claimants sought to rely on the Strasbourg court’s decision in Allen v United Kingdom 36 BHRC 1, decided on 12 July 2013. The defendant relied on the Supreme Court decision in R (Adams) v Secretary of State for Justice  1 AC 48, a case decided before the s133(1ZA) definition of “miscarriage of justice” was introduced. The defendant also argued that the decision in Allen was erroneous.
In Adams a majority of the Supreme Court had found:
… that while the presumption of innocence guaranteed by article 6.2 of the Convention prevented a state from undermining the effect of a criminal acquittal, the procedure enacted by section 133 of the 1988 Act providing for the decision on entitlement to compensation to be taken by the executive was separate and raised different questions from the proceedings in a criminal court, and the refusal of compensation on the basis that the claimant has not proved beyond reasonable doubt that a miscarriage of justice had occurred would not infringe article 6.2 .
The Divisional Court made clear it found itself bound by Adams to hold that Article 6(2) had no bearing on a decision on whether to award compensation under s133 of the 1988 Act, regardless of whether a miscarriage of justice covered circumstances where the new fact provided conclusive proof of innocence or whether, as introduced by s133(1ZA), that new fact showed beyond reasonable doubt that the person did not commit the offence. Burnett LJ stated he was:
bound by the rules of precedent to follow decisions of the Court of Appeal and Supreme Court (or House of Lords). Even were we satisfied in the context of a decision on the meaning of the ECHR that the Strasbourg Court had clearly disagreed with the domestic courts by which we are bound, we are obliged to adhere to our rules of precedent: Kay v. Lambeth London Borough Council  2 AC 465 at para 43.
Judging by the withering comments from Burnett LJ in regard to Strasbourg’s expansionist approach to Article 6(2), one might suspect he was perfectly happy to be so bound in this case (see below).
The Court did consider Allen in some detail, pointing out that it had not in fact been concerned with the meaning of “miscarriage of justice” or the compatibility of s133 of the 1988 Act with Article 6(2). It was actually concerned with the language that the High Court and Court of Appeal had used when refusing judicial review of the SoS’s refusal to pay compensation under s133. Ms Allen argued this language gave rise to doubts about her innocence. Nevertheless, the Grand Chamber went on to decide that Article 6(2) was applicable to compensation decisions made under s133 of the 1988, contrary to the Supreme Court’s conclusions in Adams.
- Burnett LJ seized this as an opportunity to observe that:
The Strasbourg Court has long interpreted Article 6(2) in a way which takes its meaning well beyond its natural language and the original intention underlying it. The further step taken in applying it to compensation proceedings of the sort in issue in this case may not be altogether surprising. (para 46)
He also described as “key” the observation made by Lord Phillips in Adams at para 58:
The court’s expansion of what would seem to be a rule intended to be part of the guarantee of a fair trial [Art6(2)] into something coming close to a principle of the law of defamation is one of the more remarkable examples of the fact that the Convention is a living instrument.
To add to this already fairly strong condemnation, Burnett LJ determined he should “mention the separate opinion” of Judge de Gaetano in Allen, which included:
- That the majority in Allen had simply “opted for a mere compilation of cases and generic statements” rather than undertaking a proper reassessment of Article 6(2); and
- That Article 6(2) “has no place whatsoever” in compensation proceedings following acquittal.
Although a decision at High Court level, defendant (government) lawyers will rightly view Burnett LJ’s words as providing helpful ammunition for defending future claims like this.
- For those interested in statutory interpretation and its multifarious rules and principles, this case is worth a glance. Burnett LJ’s examination of the meaning of ratio decidendi means we may also see his judgment arriving on law students’ reading lists.
The claimants had sought to argue that while seven members of the Supreme Court in Adams had decided that Article 6(2) was not relevant to the interpretation of s133, the reasons given had not been uniform. It was argued, therefore, that the High Court was not bound to hold, as a matter of domestic law, that s133(1ZA) was compatible with Article 6(2).
To this, Burnett LJ paid short shrift:
I do not accept the submission that a legal proposition arrived at by different judges applying variable reasoning is thereby deprived of having binding effect if it is impossible to discover a majority that adheres to the same reasoning in stating a proposition of law. (para 25)
With the Supreme Court sitting with five, seven or nine justices, this must be correct both as a matter of law and a matter of pragmatism.
At its core, this case emphasises that the right to compensation under s133 of the 1988 Act does not require the claimant to prove his innocence. Instead, the Secretary of State must be satisfied as to the link between the new facts and the applicant’s innocence before he is required to pay compensation under the 1988 Act.
The refusal of compensation on the basis that the statutory criteria are not established does not carry any implication that the person is in fact guilty. Yet, one must wonder whether Burnett LJ’s words might be relayed back to Mr Gove as possible fuel for an argument that the Human Rights Act should be ditched. A more accurate analysis might see this case as a demonstration of the important checking and balancing roles performed by our courts.
Leanne Woods is a barrister at 1 Crown Office Row
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