December 07 2022

‘Without recompense for the wrongfully convicted, the integrity of our justice system is in question’

‘Without recompense for the wrongfully convicted, the integrity of our justice system is in question’

Victor Nealon - for the Independent on Sunday


Victor Nealon - for the Independent on Sunday

Victor Nealon – for the Independent on Sunday

The Court of Appeal this morning rejected a test case by two innocent victims of miscarriages of justice challenging the government over its refusal to compensate them for years spent in prison. Victor Nealon and Sam Hallam had been challenging provisions under the Antisocial Behaviour, Crime and Policing Act 2014 which restricts compensation pay outs for victims of miscarriages of justice to only those who can demonstrate ‘beyond reasonable doubt’ that they did not commit the offence.

Today’s decision means that the two men who were wrongfully convicted by the state, left to languish many years in custody – my client, Victor Nealon spent 17 years in prison – now, under the current law, have no hope that they will ever receive financial recompense.

We will fight on because without a proper recognition of the state’s failure in such cases and an adequate system to recompense the wrongfully convicted, the integrity of our justice system will always in be question.

Both men had their convictions quashed with the effect that in law that they are innocent – and yet the 2014 law requires them, for the purposes of compensation, to prove their innocence again. The person who decides whether they have done this is the secretary of state who has an interest in refusing all such claims.
The Ministry of Justice only last week announced Dame Linda Dobbs was taking over as the assessor of compensation for miscarriage cases. Could it it be possible to invent a job more pointless than that of Independent Assessor for Miscarriages of Justice? Short of new DNA evidence, it’s hard to think of cases that might qualify for compensation. Of course, Victor Nealon had his conviction quashed on the basis of new DNA evidence.

Back to the new post 2014 test; as now formulated (and sanctioned by the Court of Appeal), it requires a claimant to prove their innocence for a second time – and that assessment, it appears, is entirely at the discretion of the secretary of state. That assessment needs to placed in the hands of an independent tribunal, perhaps headed by Dame Linda.

The history of the requirement to have a scheme for compensation derives from the UK’s international Obligations under International Covenant on Civil and Political Rights 1966, article 14 (6), ratified by the government in 1976. This states that:

‘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 known fact in time is wholly or partly attributed to him.’

Because of a lack of statutory definition of a ‘miscarriage of justice’, a series of cases ensued the culmination of which was R (Adams) v Secretary of State for Justice [ 2012] 1 AC 48. In this case only two types of cases were envisaged as being miscarriages of justice:

  1. where the evidence clearly showed that the defendant is innocent of the crime of which he has been convicted;
  2. where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant.

Parliament suggested – following Ali and Others in 2013 – that this created uncertainty and imposed the 1ZA Section 133 statutory test.  An essential argument in the cases which have subsequently been brought is that the new Section 133 is incompatible with the European Convention on Human Rights, Article 6(2)  (the presumption of innocence).

The Supreme Court in R (Adams) v Secretary of State for Justice in 2011 held that a ‘miscarriage of justice’ should cover those cases where a new or newly discovered fact ‘so undermines the evidence against the defendant that no conviction could possibly be based upon it’. Much has been made of the differing speeches in that case 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).

The Grand Chamber in Strasbourg appeared to reach a contrary view in the case of Allen v United Kingdom [ 2013] 36 BHRC 1, although due to the wording of the test at that time it declined to make any award of compensation to Ms Allen . This presented the Court of Appeal with a conflict between an interpretation that Section 133 does not offend Article 6 (2) and the decision in Allen which suggests that it could and arguably would in its current formulation.

The Court now concludes (at para 21 of its judgment) that following Adams article 6(2) does not apply to Section 133 and that Adams does remain binding authority regardless of Allen.

However, contrary to the Government’s arguments, whilst the Court of Appeal considered the decision in Adams was binding authority it concluded that the decision in Allen was a very clear statement by the Grand Chamber that article 6 (2) did apply.

As the Court observed it was a carefully considered decision which was intended to be authoritative. As a result, the Government’s attempts to discount the decision in Allen based on some idea of a lack of clear and constant line of authority were dismissed by the Court of Appeal.

Lord Dyson, whilst indicating a preference for the majority view in Adams, makes clear that it is not for the domestic court to decline to follow the majority view in Allen v UK.

As a result, the only argument for the Court to then address was whether section 133 as now amended was incompatible with Article 6(2) which clearly applies. The Court concluded that, if the language of the decision maker is such as to call into question the innocence of the claimant, then this will infringe article 6(2).

Lord Dyson notes:

‘I accept that, if section 133 required the secretary of state to voice doubts or suspicion on the innocence of the applicant, then it would be regarded as incompatible with article 6(2) according to the Strasbourg jurisprudence.’
Para 47

With respect to his Lordship this is exactly what the situation is.

For example, in the case of Victor Nealon, the secretary of state is stuck with accepting the consequences of the DNA pointing to someone else being responsible for the offence and – to seek to avoid this conclusion – the Secretary of State has been left to raise the issue of scientific proof (i.e., saying that whilst he accepts the DNA was someone else that does not amount to 100% scientific proof).

He is casting doubt on the applicant’s innocence.

Further the Court suggests that the new section does not require the applicant to prove his innocence generally. Again with respect to the the Court of Appeal and the Divisional Court, this is nonsense.

The claimants are being required to prove their innocence generally.

If the newly discovered fact tends to suggest innocence, the Secretary of State has to then grapple with its significance to the conviction as a whole – yet again it seems the Court has failed to address this issue head on. It is clear and a matter of common sense therefore that no assessment of innocence can ever take place in the vacuum of the newly discovered fact.

The Court seeks to lend support to its conclusion by pointing to the fact that the purpose of such a scheme is to limit eligibility to a narrower category of cases, the difficulty however is that the test as it now stands will reduce claims to the point of vanishing.

Perhaps the approach of the Court to this question demonstrates how unchanged the Court’s thinking is to the issue of miscarriages in general The Court demonstrates this by relying on the words of Sir Thomas Bingham MR in R V Secretary of State for the Home Department exp Bateman [ 1994] 7 Admin LR 175:

‘He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest Mr. Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three and a half years when he should not have been convicted or imprisoned at all… . But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr. Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation.’

Anyone reading the judgment cannot help but reflect that the court has become totally out of touch from the real plight of the wrongfully convicted. The analysis has descended into semantic gymnastics.

We should remember the plight of men such as Victor Nealon and Sam Hallam. Victor Nealon has been damaged and left traumatized after 17 years in prison. He was thrown out of Wakefield Prison homeless with just £46 to his name and no support.

It is shocking to reflect that he would have fared better if he had left prison still convicted of the offence that he was declared innocent of.

The fight goes on and permission will now be sought to pursue this matter before the Supreme Court and, if necessary, we’ll take it to Strasbourg.