December 01 2021

The innocent test: a question of language

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The innocent test: a question of language

Sam Hallam: Pic by Micha Theiner for the Independent on Sunday

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Sam Hallam was serving life imprisonment for a murder he did not commit. Pic by Micha Theiner

Sam Hallam was serving life imprisonment for a murder he did not commit. Pic by Micha Theiner

When parliament was seeking to amend the test for compensating victims of miscarriages of justice, it was pointed out that requiring a person to prove that they are innocent might in itself, strangely enough, offend the presumption of innocence.

Accordingly some bright spark resolved that if the amended test required the person instead to prove that they did not commit the offence, the problem would be solved.

Victor Nealon, front cover, Indy on SundayAnd so, the question of whether ‘innocent’ and ‘did not commit the offence’ meant something different, was a central question for the Divisional Court (Burnett LJ and Thirwall J ) in a two-day hearing on 12 and 13 May in the cases of Victor Nealon and Sam Hallam v the Secretary of State for Justice.

  • Read an interview with Sam Hallam in the Independent on Sunday by JusticeGap editor Jon Robins here
  • Read an interview with Victor Nealon on www.thejusticegap.com here – edited version in the Independent on Sunday here

Judgment has been reserved, and those concerned with the wrongfully convicted being compensated will have to wait a little longer – and maybe even longer (given the likelihood of an appeal by whoever is unsuccessful) – before a final decision is made. The central issue in the case is whether the new Section 133(1ZA) of the Criminal Justice Act 1988, which requires a claimant to demonstrate beyond reasonable doubt that as a result of a newly discovered fact he did not commit the offence, offends the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights.

The Secretary of State boldly asserted this was not an innocence test at all, and that a person is not required to prove his innocence, but rather to show that the new fact shows he did not commit the offence.

However this seems more than a little dubious, firstly due to the fact that the Government wanted to introduce an innocence test during the passage of the bill, but in the end changed the wording in a parliamentary fudge. Secondly, there would appear to be no difference of substance between the two and a person is required, in any event, to show that he is innocent.

If the evidence shows he did not commit the offence, then he is innocent. It is the same. In the European case of Allen v United Kingdom, dealing with the old scheme and wording, it was concluded that Section 133 did not infringe Article 6 (2), because it did not call into question innocence.

At that time what is known as a ‘category 2’ case could be eligible for compensation, i.e. where any reasonably directed jury could not properly convict as a result of the newly discovered fact. It was during the current hearing recognised by all, apart from the Secretary of State, that if Europe was called to consider the new test it was likely to hold that the presumption of innocence had been breached, in view of observations it made in Allen.

The Secretary of State suggested that the court was bound by the Supreme Court’s conclusions in Adams on the question of Article 6(2). Even though, in that case, the point was argued in a different way and it was suggested that the presumption was not breached because, in any event, all that the Secretary of State was doing was pointing to factors that indicated the test was not met (and this was not the same as assessing innocence).

Reliance was also placed on a glib final paragraph included in all decision letters, asserting that nothing in the decision impugned the innocence of the applicant: the letter effectively saying ‘you can’t show that you didn’t commit the offence, but we are not saying that you are not innocent’. Much was made of the differing speeches in Adams and whether ‘a minority of the majority or majority of the minority’ (depending on your view), reached any conclusion over the applicability of Article 6( 2 ), such that the Divisional Court was bound to follow what an arithmetic majority had concluded in Adams, i.e. that Article 6(2) did not apply.

The inescapable truth
Strong arguments were advanced by the claimant to indicate that this was not what was said and that, on any reasonable view, the presumption of innocence was offended. It was submitted, in terms, that it would be an affront to common sense to conclude otherwise.

The inescapable truth is that no assessment of the newly discovered fact could flow unless it was an assessment of the person’s guilt or innocence, and that is exactly the exercise that the Secretary of State was undertaking. Although the Hallam team did not bring a challenge on the facts, the Nealon team did, and it exposes why the Secretary of State is adopting an innocence test in everything but name.

In refusing Mr Nealon compensation, the Secretary of State asserted that the Court had before it alternative explanations for the presence of DNA, including innocent transfer, relying on scientific possibilities identified by the prosecution’s forensic expert. ‘The expert of course said these were only possibilities requiring further examination in his first report and made the point that possibility did not mean probable. It was possible he might win the National Lottery but not very probable.’

Nonetheless the Secretary of State ignored these reservations and relied on these broad-brush ideas to decline compensation, asserting that therefore it could not be proved beyond reasonable doubt that Mr Nealon did not commit the offence. This was, of course, nonsense. The prosecution expert had been asked to consider alternative explanations in his first report for the Commission, and highlighted possible scenarios which should then be subject to further work, as did Mr Nealon’s expert.

The CCRC conducted those enquiries and, to all intents and purposes, all possible innocent explanations for the presence of the DNA were excluded. In fact, as counsel for Nealon, Matt Stanbury pointed out, in a careful decision the CCRC considered every possible argument, and discounted it by their elimination enquiries. This allowed the Court of Appeal to conclude that ‘every sensible enquiry’ that could be made had been made. As counsel noted, the last throw of the dice came when the CPS tried to argue the contamination could have occurred in the shop where the victim bought the clothing.

As Thirwall J noted in argument, it was not likely that the victim would have been served by a man whilst shopping for a brassiere, and the implausibility continued as there was not one shred of evidence to support any of this theory. It was nothing more than pure speculation. As a result it was clear that all of the evidence sensibly pointed to a crime-related explanation, and that the unknown male was the attacker.

Reliance was placed on the fact that the prosecution expert said he had a low expectation of finding DNA at the outset. But as counsel for Mr Nealon, Matt Stanbury, pointed out: ‘If you go looking for a needle in a haystack, you may have a low expectation of finding one. But if that is what you find, you need to ask yourself why, and where it has come from.’

The problem for the Secretary of State is that in a poor decision letter they latched onto the Crown’s arguments in the appeal, but failed to assess the evidence in detail. Had they done so, they would surely have drawn the inevitable conclusion that the evidence showed that Victor Nealon did not commit the offence for which he was convicted. The Court is now to grapple with what are very complex issues, and it is to be hoped in finding a way forward they will apply a good dose of common sense.

The contrary view would be to further consign this case into a legal mess, which will take a considerable amount of time to sort out. In the meantime people like Sam Hallam and Victor Nealon will see the tragedy they live with on a daily basis continue.


One response to “The innocent test: a question of language”

  1. Michelle Bates says:

    Hello Mark,

    Thank you for this article which shows the absurdity of this “Not Innocent Enough” decision. I’m sure you know the case of Barry George, too. He has been refused under the same judgement. Because he had a re-trial he does not qualify as a miscarriage of justice. Also, he was told ‘you have not proven your innocence beyond reasonable doubt.’

    At his re-trial, three first trial witnesses changed their initial timings which put him at the disability centre HAFAD at 11:30…the same time Jill Dando was killed! This was the same time given by one HAFAD witness at the first trial. How could he be killing someone and be at HAFAD, a 20 minute walk away?
    The real issue here is the loss of the presumption of innocence, which is unlawful.

    Michelle (sister of Barry George)

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