United Kingdom Supreme Court

The factual background

(1)   Mr Hallam’s case

“The new information in relation to the messages from Gary Rees raises the possibility of greater collusion (in the sense of discussion) between the [identification] witnesses than the defence team knew at the time. It also potentially puts paid to [one of those witnesses’] assertion that from the outset there were rumours that Sam Hallam was involved.”

Returning to the alibi, the court noted (para 78) that:

“We now know there is a real possibility that the appellant’s failed alibi was consistent with faulty recollection and a dysfunctional lifestyle, and that it was not a deliberate lie. The proper support for the Crown’s case has fallen away.”

“80.     In our judgment, the cumulative effect of these factors is enough to undermine the safety of these convictions. …

83.       Accordingly, the result is that the conviction is unsafe and it must be quashed.”

“Following the coming into force of section 175 of the Anti-social Behaviour, Crime and Policing Act 2014, compensation under section 133 of the Act is only payable where a person’s conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.”

The letter continued:

“… the Secretary of State does not consider that the new evidence before the court shows beyond reasonable doubt that Mr Hallam did not commit the offence.”

The Secretary of State explained:

“The CA [Court of Appeal] view was that the cumulative effect of [the fresh evidence] was enough to undermine the safety of your client’s convictions which were quashed on that basis. However, the fresh evidence does not establish positively that your client was not at the murder scene …

“It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt on the decision of the [Court of Appeal] to quash your client’s convictions. Mr Hallam is presumed to be and remains innocent of the charges. His application has been rejected as it does not meet the statutory test for compensation under section 133 of the 1988 Act.”

(2)       Mr Nealon’s case

“Although the new evidence shows that the DNA was from an ‘unknown male’, this does not mean that it undoubtedly belonged to the attacker. Expert evidence for the prosecution at the appeal stated it was plausible that the attacker transferred little or no DNA to the victim’s clothing during the commission of the offence, and that the DNA from the unknown male may not have been crime related. The Court of Appeal said that these arguments required ‘serious consideration’. It also found that the original jury had been entitled to convict your client on the basis of the existing identification evidence (which was not at issue in the appeal). Whilst the Court of Appeal decided, ultimately, that the jury ‘may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the ‘unknown male’ - and not the applicant - was the attacker’, the court was explicit that the fresh evidence did not ‘demolish’ the prosecution evidence.”

“Having considered the judgment in the Court of Appeal, and your client’s own submission, the Justice Secretary is not satisfied that your client’s conviction was quashed on the ground that a new or newly discovered fact shows beyond reasonable doubt that your client did not commit the offence.”

The letter concluded in similar terms to that sent to Mr Hallam:

“Finally, it is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt upon the decision to quash your client’s conviction. You client (sic) is presumed to be and remains innocent of the charge brought against him. His application has been rejected because his case does not in the Justice Secretary’s view meet the statutory test for compensation under section 133 of the Criminal Justice Act 1988.”

The statutory provisions

“(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.”

Section 133(2) requires an application for compensation under the section to be made within two years of the date on which the person’s conviction is reversed or he is pardoned. Section 133(3) provides:

“(3)     The question whether there is a right to compensation under this section shall be determined by the Secretary of State.”

Under section 133(5), the term “reversed” is to be construed as referring to a conviction having been quashed, inter alia, on an appeal out of time, or following a reference to the CACD by the Criminal Cases Review Commission.

“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.”

There is a very similar provision in article 3 of Protocol No 7 to the Convention (“A3P7”), which the United Kingdom has not ratified.

1)                  cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which he was convicted;

2)                  cases where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it;

3)                  cases where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and

4)                  cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

By a majority, the court held that the term “miscarriage of justice” covered all cases falling within category (2). It therefore included, but was not limited to, cases falling within category (1). The minority view was that the term was confined to category (1) cases.

“(1ZA)  For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).”

The words “did not commit the offence” can be read as synonymous in this context with the words “is innocent” used by this court in category (1) in Adams . The effect of section 133(1ZA) is therefore that there is a miscarriage of justice, for the purposes of section 133(1), only where the new or newly discovered fact shows beyond reasonable doubt that the case falls into category (1) recognised in Adams .

The present proceedings

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

1)                  The first concerns the scope under English law of article 6(2) scheduled to the Human Rights Act 1998: in particular whether and how far it applies at all to decisions on, or the criteria for, the award of compensation under section 133 of the Criminal Justice Act 1988; this question requires us to consider inter alia whether this court should depart from its decision in Adams .

2)                  The second question, arising if and so far as article 6(2) is applicable in respect to such decisions or criteria, is whether the definition of “miscarriage of justice” in section 133(1ZA), introduced by section 175 of the Anti-Social Behaviour, Crime and Policing Act 2014 is incompatible with article 6(2).

Innocence in criminal proceedings

“Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt.”

“23.     There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken , Annex 3, p 341: [A] criminal trial does not address ‘factual innocence’. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law.

24.       Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under section 696.3(3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing this case ‘as if it were an appeal’. While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellant’s factual innocence.

25.       In addition to the jurisdictional issue, there are important policy reasons for not, in effect, recognising a third verdict, other than ‘guilty’ or ‘not guilty’, of ‘factually innocent’. The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell , ‘there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict’: see p 39. To recognise a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt.”

The scope of article 6(2)?

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

“Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair-trial guarantees of article 6(2) could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person’s reputation and the way in which that person is perceived by the public.”

“In order to establish whether or not such suspicion subsists, it might be more useful to refer to the record of the jury’s deliberations. The content of this record … suggests rather that in the jury’s opinion all suspicion had not been removed. However, as the court called upon to rule under the [1969] Act … is not bound, in its assessment of the position as regards suspicion, by the verdict (of acquittal) at the trial, not even the record of the jury’s deliberations is of decisive importance.”

After setting out a whole range of suspicious circumstances, the Court of Appeal concluded:

“Having had regard to all these circumstances, the majority of which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion being dispelled.”

“Such affirmations - not corroborated by the judgment acquitting the applicant or by the record of the jury’s deliberations - left open a doubt both as to the applicant’s innocence and as to the correctness of the Assize Court’s verdict. Despite the fact that there had been a final decision acquitting Mr Sekanina, the courts which had to rule on the claim for compensation undertook an assessment of the applicant’s guilt on the basis of the contents of the Assize Court file. The voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.”

“regardless of whether the criminal proceedings ended in discontinuation or acquittal, the court has emphasised that while exoneration from criminal liability ought to be respected in the civil compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. However, if the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of article 6(2) of the Convention (see Ringvold , cited above, para 38; Y , cited above paras 41-42; Orr , cited above, paras 409 and 51 …).”

“125.  It emerges from the above examination of the court’s case law under article 6(2) that there is no single approach to ascertaining the circumstances in which that article will be violated in the context of proceedings which follow the conclusion of criminal proceedings. As illustrated by the court’s existing case law, much will depend on the nature and context of the proceedings in which the impugned decision was adopted.

126.    In all cases and no matter what the approach applied, the language used by the decision-maker will be of critical importance in assessing the compatibility of the decision and its reasoning with article 6(2) ...”

“although the concept of ‘violence’ may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum [sic].”

“Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.

…

The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold].

Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C], the conditions for making an award of compensation have been fulfilled. [...]”

Compatibility of section 133(1A) with article 6(2)?

“… put concisely, that the claimant had previously been convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice.”

It went on:

“The criteria reflect, with only minor linguistic changes, the provisions of article 3 of Protocol No 7 to the Convention, which must be capable of being read in a manner which is compatible with article 6(2). The court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant’s criminal guilt.”

The words “beyond reasonable doubt” appearing in the original section 133 were thus treated as an acceptable equivalent of the word “conclusively” appearing in A3P7.

“The court does not consider that the language used by the domestic courts [ie the courts considering the judicial review of the Secretary of State’s refusal to pay compensation], when considered in the context of the exercise which they were required to undertake, can be said to have undermined the applicant’s acquittal or to have treated her in a manner inconsistent with her innocence. The courts directed themselves, as they were required to do under section 133 [of the 1988 Act], to the need to establish whether there was a ‘miscarriage of justice’. In assessing whether a ‘miscarriage of justice’ had arisen, the courts did not comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative of the applicant’s guilt or innocence. They merely acknowledged the conclusions of the CACD, which itself was addressing the historical question whether, had the new evidence been available prior to or during the trial, there would nonetheless have been a case for the applicant to answer. They consistently repeated that it would have been for a jury to assess the new evidence had a retrial been ordered …”

“It was for the domestic courts to interpret the legislation in order to give effect to the will of the legislature and in doing so they were entitled to conclude that more than an acquittal was required in order for a ‘miscarriage of justice’ to be established, provided always that they did not call into question the applicant’s innocence. The court is not therefore concerned with the differing interpretations given to that term by the judges in the House of Lords in R (Mullen) and, after the judgment of the Court of Appeal in the present case, by the judges in the Supreme Court in R (Adams) . What the court has to assess is whether, having regard to the nature of the task that the domestic courts were required to carry out, and in the context of the judgment quashing the applicant’s conviction, the language they employed was compatible with the presumption of innocence guaranteed by article 6(2).”

“But what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence. The High Court in particular emphasised that the facts of R (Mullen) were far removed from those of the applicant’s case and that the ratio decidendi of the decision in R (Mullen) did not assist in the resolution of her case.”

“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate, court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”

“However, the Explanatory Report itself provides that, although intended to facilitate the understanding of the provisions contained in the Protocol, it does not constitute an authoritative interpretation of the text (see para 71 above). Its references to the need to demonstrate innocence must now be considered to have been overtaken by the court’s intervening case law on article 6(2).”

“... does not constitute an instrument providing an authoritative interpretation of the text of the Protocol, although it might be of such a nature as to facilitate the understanding of the provisions contained therein.”

As a statement of what the drafters actually intended by A3P7, one would have thought that the Explanatory Memorandum could not have been clearer. On what basis subsequent case law could silently overtake this clear original intention is not obvious.

“The question whether there is a right to compensation under this section shall be determined by the Secretary of State.”

Second, Lord Phillips in R (Adams) proceeded on an opposite basis, without any contrary reservation being made by any of his fellow judges. On this basis, the Secretary of State is given an adjudicative role (subject of course, where necessary, to judicial review by the ordinary courts) in relation to the question whether “a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”.

LADY HALE:

LORD WILSON:

(a)       The meaning of an article is to be collected from its terms in their context and in the light of its object and purpose: article 31(1)(c) of the Vienna Convention on the Law of Treaties, 1969 Cmnd 4140.

(b)       Paragraph 1 of article 6 distinguishes between “civil rights and obligations” and a “criminal charge”; and the language of para 3 of the article makes clear that it addresses the rights only of those subject to the latter, namely of “[e]veryone charged with a criminal offence”. Such is the context of para 2 of the article, which, like para 3, confers a right only on “[e]veryone charged with a criminal offence”.

(c)       When article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty, its meaning, if collected in accordance with the Vienna Convention, can only be that everyone shall be presumed to be innocent for the purpose of the criminal law until proved to be so. Following an acquittal, the presumption has no further role. The acquitted defendant has no need for a mere presumption, potentially rebuttable, that he is innocent. For, subject to the remote possibility of a second criminal trial, it has become an irrebuttable fact that he is innocent - for the purpose of the criminal law . The apparatus for punishment within the criminal law cannot be applied to him.

(d)       The trouble is that the ECtHR has divorced the word innocent from its context and, in the words of Judge De Gaetano in para 3 of his separate opinion in the Ashendon case, cited by Lord Mance in para 53 above, has launched article 6(2) into an orbit separate from that of the article. He there proceeded to call for a thorough re-examination of its proper place in the article.

(e)       The entitlement of the ECtHR, referred to by Lord Mance in para 35 above, to give an autonomous meaning to the articles of the Convention is intended to override any distorted meaning ascribed to them contrary to the Vienna Convention by individual states, not to license the ECtHR to ascribe a distorted meaning to them: see paras 80 and 81 of its judgment in the Engel case, to which Lord Mance there refers.

(f)        As Judge Power said in para 7 of her strong separate opinion in the Bok case, cited by Lord Hughes in para 120 below, a reference to a violation of the presumption of innocence when a person is not - or is no longer - facing a criminal charge divorces the principle from its purpose.

(g)       The ECtHR has blurred the crucial distinction between guilt for the purposes of the criminal law and guilt for other purposes, determined on a different basis.

(h)       Following its removal of the presumption out of the orbit of article 6, the ECtHR has been required to explain its application in two main areas.

(i)        The first main area is that of civil claims, whether brought against acquitted defendants by their alleged victims or by the state in aid of protecting children or brought against unsuccessful prosecutors by acquitted defendants. A fair hearing of these civil claims, to which the claimants and the defendants (including the former prosecutors) are all entitled under article 6(1), will usually require a determination, by reference to probabilities, of facts not established beyond reasonable doubt in the criminal proceedings.

(j)        In the Y case, cited by Lord Mance in para 50 above, the applicant had been acquitted on appeal of homicide and sexual assault. The deceased’s parents sued him for compensation. Under Norwegian law they had to show that it was “clear on the balance of probabilities” that he had killed and sexually assaulted their daughter. In awarding compensation to them the Norwegian court, upheld on appeal, found “it clearly probable that [the applicant] has committed the offences”. The ECtHR held that the court had cast doubt on the correctness of his acquittal and had therefore violated article 6(2).

(k)       In the Orr case, also cited by Lord Mance in para 50 above, the ECtHR followed the decision in the Y case. It applied the presumption to a civil judgment in Norway that a man whom a jury had acquitted of raping a woman had nevertheless, on the balance of probabilities, when using a degree of violence, had sex with her without her consent and had thereby committed a tort against her for which he should pay damages. The ECtHR held that the judgment had violated the presumption of innocence because the use made in it of the concept of violence had conferred criminal law features on its reasoning: see the passage there quoted by Lord Mance. So the Norwegian court had apparently violated the presumption by fully explaining its factual findings: it should apparently have diluted its findings by omitting the finding that the man had used a degree of violence. There was a powerful dissenting opinion by Judge Jebens, who disputed that article 6(2) was even applicable to the civil judgment, let alone that it had been violated.

(l)        Are the conclusions of the ECtHR in the Y case and in the Orr case tenable?

(m)      The other main area is that of claims for compensation against the state by defendants for their detention in prison, whether on remand or otherwise, prior to their acquittal at trial or on appeal.

(n)       The Sekanina case, cited by Lord Mance in para 39 above, concerned the Austrian provision for payment of compensation to an acquitted defendant referable to his period in custody on remand if suspicion that he committed the offence was dispelled. The Austrian court’s decision that the suspicion was not dispelled was held to be incompatible with the presumption. The problem for the ECtHR was that in the Englert and Nölkenbockhoff cases, cited by Lord Hughes in para 106 below, it had held that refusals of compensation based on suspicions of guilt were not incompatible with the presumption. In the event the court distinguished them on the basis that there the criminal proceedings had ended prior to their final determination on the merits. But why was this distinction relevant to the reach of the presumption?

(o)       Is the conclusion of the ECtHR in the Sekanina case tenable?

(p)       The decision in the Sekanina case was followed in the Hammern case, cited by Lord Reed in para 151 below. The significance of the latter lies in the striking assertion, at paras 41 and 42 of the judgment, that, although not even the court’s autonomous concept of a criminal charge extended to the compensation proceedings, article 6(2) nevertheless applied to them.

(q)       The decision of the Grand Chamber in the Allen case, cited by Lord Mance in para 22 above, concerned, as do the present appeals, a different and more circumscribed provision in the UK in section 133(1) of the Criminal Justice Act 1988 for compensation to be paid to certain defendants ultimately acquitted on appeals out of time. As Lord Mance explains in para 16 above, the section was enacted to give effect to the UK’s international obligations under article 14(6) of the International Covenant on Civil and Political Rights 1966 (“the Covenant”). The compensation is for “punishment as a result of [a] conviction” and the obligation to pay it arises upon the reversal of a conviction “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice”.

(r)        It is noteworthy that article 14(2) of the Covenant provides for what it calls a “right to be presumed innocent” but is otherwise in precisely the same terms as article 6(2) of the Convention. Evidently the drafters of article 14 did not regard it as inconsistent to provide within it both for a presumption of innocence on the one hand and for an inquiry into whether an ultimately acquitted defendant had or had not been the victim of a miscarriage of justice on the other.

(s)        Indeed in the WJH case, cited by Lord Hughes in para 121(vi) below, the Human Rights Committee, established under the Covenant to monitor its implementation, decided that the presumption of innocence in article 14(2) “applies only to criminal proceedings and not to proceedings for compensation”.

(t)        In 1984 the Council of Europe decided to bring the Convention into line with article 14(6) of the Covenant by providing in article 3 of Protocol 7 a right to compensation for certain ultimately acquitted defendants in almost precisely the same terms. In para 25 of its explanatory report upon the protocol, which it said did not constitute an authoritative interpretation of its articles, the Steering Committee for Human Rights, appointed by the Council, suggested that the intention behind article 3 was to require compensation “only in clear cases of miscarriage of justice, in the sense that there would be acknowledgment that the person was clearly innocent”. The committee’s suggestion was inconsistent with any idea that a finding that an acquitted defendant was not clearly innocent would be incompatible with the presumption of innocence.

(u)       In the Allen case the applicant had ultimately been acquitted on appeal on the basis that fresh evidence might reasonably have affected the jury’s decision. She complained that the UK courts had acted incompatibly with the presumption of her innocence by refusing to quash a decision that she had not established a miscarriage of justice and was therefore not entitled to compensation under section 133(1), then unamended, of the 1988 Act. The court at first instance had, for example, observed that there remained powerful evidence against her. The Grand Chamber sought to undertake an exhaustive review of the court’s case law on the role of article 6(2) in various types of proceedings which take place after an acquittal; and by implication it approved all of the court’s previous decisions.

(v)       First the Grand Chamber addressed the circumstances in which, after acquittal, article 6(2) applied. It reiterated in para 96 that the article might apply even when its words, given their autonomous meaning, did not apply. It suggested in para 94 that, after acquittal, the article’s aim was two-fold: to protect an acquitted defendant from being treated by a public authority as in fact guilty of the offence charged and, perhaps overlapping with his rights under article 8, to protect his public reputation. It held in para 103 that the article therefore required that he be treated as someone innocent “in the eyes of the law”, not just (so I interpolate) in the eyes of the criminal law. It concluded at para 105 that the article applied whenever the applicant demonstrated a “link” between the criminal proceedings and the subsequent proceedings. It exemplified the necessary link when in para 107 it turned to the facts of the Allen case: the link existed there because the resolution of the criminal proceedings in the appellate court had triggered the right to apply for compensation and because the requirements of section 133 required reference to the judgment of that court.

(w)      Then the Grand Chamber addressed the circumstances in which, if after an acquittal it applied to a later decision, article 6(2) had been violated . In para 122 it approved the decision in the Sekanina case that the voicing of suspicions of guilt in compensation proceedings would violate the article if the conclusion of the criminal proceedings had been a final determination on the merits, as opposed to their discontinuation; but in para 123 it held, without explanation, that the distinction did not apply to civil claims brought against acquitted defendants by alleged victims. Its conclusion at paras 125 and 126 was that there was “no single approach” to ascertainment of a violation; that “much will depend on the nature and context” of the subsequent proceedings; but that in every case “the language used by the decision-maker will be of critical importance”. It proceeded to hold at para 136 that the terms in which the UK courts had rejected the applicant’s claim had not violated article 6(2). But at para 127 it had observed, without explanation, that the setting aside of her conviction in the appeal court had been more like a discontinuance than an acquittal on the merits, with the result (presumably) that the suspicions of guilt articulated by both domestic courts in the compensation proceedings did not constitute a violation.

(x)       In the Allen case Judge De Gaetano again entered a separate opinion. In para 3 he described the court’s conclusion as being that “it all depends on what you say and how you say it” and in para 5 he reiterated his belief that article 6(2) had no application to compensation proceedings following acquittal.

(y)       With acute professional discomfort I ask: in relation to the circumstances in which article 6(2) applies and in which it is violated , are the conclusions of the Grand Chamber in the Allen case tenable?

“21.     The degree of constraint imposed or freedom allowed by the phrase ‘must take into account’ is context specific, and it would be unwise to treat Lord Neuberger MR’s reference to decisions ‘whose reasoning does not appear to overlook or misunderstand some argument or point of principle’ or Lord Mance JSC’s reference to ‘some egregious oversight or misunderstanding’ as more than attempts at general guidelines …”

(b)       I appreciate the desirability of a uniform interpretation of article 6(2) throughout the states of the Council of Europe.

(c)       I regard as over-optimistic the suggestion of the Secretary of State that there is room for further constructive dialogue between this court and the ECtHR about the extent of the application of article 6(2).

(d)       I recognise the likelihood that the appellants could successfully apply to the ECtHR for a ruling that section 133(1ZA) violates article 6(2).

(e)       But I regard myself as conscientiously unable to subscribe to the ECtHR’s analysis of the extent of the operation of article 6(2) and thus to declare to Parliament that its legislation is incompatible with it.

LORD HUGHES:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The “second aspect” of article 6(2) in the Strasbourg jurisprudence

The Strasbourg jurisprudence in more detail

“The voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However it is no longer admissible to rely on such suspicions once an acquittal has become final.”

It is not immediately obvious why this should be so. There no doubt is a difference between discontinuance and acquittal, especially in systems (such as the English) where the first may sometimes be no bar to resumption of prosecution whereas the second virtually always is. But if the governing principle is the presumption of innocence in article 6(2) there seems no reason why that presumption should apply any the less to a person against whom a prosecution has been discontinued than to one who has been acquitted after trial. Both are equally entitled to claim that they cannot be convicted until proved guilty according to law. The reasoning in Sekanina and Rushiti is thus perhaps rather more pragmatic than dependent on the principle of the presumption of innocence. At all events, it is completely unexplained, either in these cases or later, and accordingly its frequent repetition since adds nothing to it.

“51.     However, the court notes that, in its reasoning on compensation, the High Court majority based its finding that the applicant was liable to pay compensation to Ms C on a description of the facts giving details of such matters as the nature of the sexual contact, the applicant’s awareness of the absence of consent by Ms C, the degree of ‘violence’ (‘ vold ’) used by him to accomplish the act and his intent in this respect. In other words, it covered practically all those constitutive elements, objective as well as subjective, that would normally amount to the criminal offence of rape under article 192 of the Penal Code. It is true that, as stated in the case law quoted above, an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts. However, the court considers that, although the concept of ‘violence’ may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum (see Y , cited above, para 46).”

This is another good indication of the semantic examination which appears to be the basis of Strasbourg’s decisions on the ambit of article 6(2).

(i)        the wording of the article, which applies it to persons “charged with a criminal offence”; it is irrelevant that that expression has an autonomous meaning under the Convention since everyone agrees that the suggested “second aspect” of, or gloss upon, article 6(2) applies it to those who are not charged in any sense with a criminal offence;

(ii)       the marked and plainly deliberate difference made by the drafters of the Convention between article 6(1) (the determination of civil rights and obligations) on the one hand and articles 6(2) and (3) (rights of those charged with criminal offences);

(iii)     the co-existence in article 14(2) ICCPR of a right in the same terms as article 6(2) of the ECHR with article 14(6) which gives a plainly more restricted right to compensation for certain kinds of miscarriage of justice;

(iv)      the similar co-existence of article 6(2) with the provisions of article 3 Protocol 7, which mirrors article 14(6) ICCPR;

(v)       the fact that at the time article 6(2) was drafted alternative versions which would have applied it to “everyone” or would have provided that “no-one shall be held guilty” were rejected in favour of the present formulation;

(vi)      the considered view of the UNHRC in WJH v The Netherlands (Communication 408/1990 [1992] UNHRC 25) that the presumption (at article 14(2) of the ICCPR) “applies only to criminal proceedings and not to proceedings for compensation”; the court in Allen referred to this conclusion but did not address it in its reasoning.

Compensation for miscarriage of justice

Taking account of the Strasbourg jurisprudence

Outcome

Postscript: judgments in the Court of Appeal (Criminal Division)

(i)        the test on an appeal against conviction is whether the conviction is safe, not whether the appellant is demonstrated not to have committed the offence;

(ii)       for this reason, it is not appropriate for the court to regard itself as having a “discretionary power” to make a legally binding declaration of innocence, nor for argument before it to proceed, as it seems to have done in Hallam on the basis that it ought to consider whether to add such a declaration to its judgment;

(iii)     but as Lord Judge observed in Adams at para 251 (cited by Lord Mance at para 30), there can be few stronger reasons for concluding that a conviction is unsafe than that fresh evidence demonstrates plainly that the appellant did not commit the offence; such cases are not common but they may occur, as for example where new DNA evidence is agreed to exonerate the appellant;

(iv)      if such cases do occur, the court ought not to be constrained in giving its reasons for its conclusion in terms which make clear what the new evidence shows; this will on occasions be common ground between prosecution and defence; it would be unfair to the appellant, if this conclusion is clear, not to state it;

(v)       counsel for an appellant may sometimes submit to the court that not only is the conviction shown to be unsafe, but that indeed fresh evidence shows plainly that the appellant did not commit the offence; if that submission is made, it is for the court to decide what are the true reasons for its conclusion on the safety of the conviction and how to express them; argument geared to a contemplated later application for compensation is not, however, appropriate since that issue is not before the court.

LORD LLOYD-JONES:

LORD REED: (dissenting)

Issue 1: Is article 6(2) of the Convention applicable to decisions under section 133 of the Criminal Justice Act 1988?

(a)       Lex specialis

“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent.”

Lord Bingham, on the other hand, observed at para 9(4) and (5) that the Explanatory Report was prefaced with a statement that it did not constitute an instrument providing an authoritative interpretation of the text of the Protocol; that para 25 did not appear to be consistent with para 23, which suggested that a miscarriage of justice occurred where there was “some serious failure in the judicial process involving grave prejudice to the convicted person”; that the reference to “innocent” in para 25 was to be contrasted with the absence of any such word in A3P7; that the expressions used in the French and Spanish versions of A3P7 were not obviously apt to denote proof of innocence; and that a standard textbook on the Convention considered the interpretation of A3P7 put forward in para 25 to be too strict.

“In addition, despite certain similarities, the situation in the present case is not comparable to that governed by article 3 of Protocol No 7, which applies solely to a person who has suffered punishment as a result of a conviction stemming from a miscarriage of justice.”

“… the fact that the court was careful to emphasise in Sekanina v Austria , para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that, as Lord Steyn put it in Mullen , para 44, article 14(6) and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them.”

That conclusion (with which Lord Clarke disagreed: para 230) did not follow from Sekanina or from any other judgment of the European court, and the subsequent judgment of that court in Allen v United Kingdom has in my opinion demonstrated that it is incorrect.

(b)       Separate proceedings

“The procedure laid down in section 133 provides for a decision to be taken by the executive on the question of entitlement to compensation which is entirely separate from the proceedings in the criminal courts.”

(c)       Not undermining the acquittal

(2)       Serious Organised Crime Agency v Gale

“Claims by an accused person following a discontinuation or acquittal for costs incurred as a result of the criminal proceedings and claims for compensation for detention are paradigm examples of such proceedings. The link between such claims and the criminal proceedings is so close that article 6(2) applies to both of them. The claims for compensation flow from the criminal proceedings. But for these proceedings, there would be no claims.”

“the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under article 6(1) of the Convention.”

(3)       Allen v United Kingdom

“The object and purpose of the Convention, as an instrument for the protection of human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.”

The need to ensure that the right guaranteed by article 6(2) is practical and effective entails that it cannot be viewed solely as a procedural guarantee in the context of a criminal trial, but has a second aspect (para 94):

“Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of article 6(2) could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person’s reputation and the way in which that person is perceived by the public.”

“The public care order was based on the expert opinion resulting from the psychiatric examinations. However, it is unclear whether A has been subjected to sexual abuse. This possibility cannot be excluded, either. According to the examinations it is undisputed that A has become predisposed to sexuality, not suitable for a child of her age. It is also clear that living with a mentally ill mother has had negative effects on A’s psychical development ...”

The European court dismissed the father’s complaint of a violation of article 6(2) as manifestly ill-founded, observing:

“In this particular case, although the prosecutor did not prefer charges against the applicant, the decision to place A into public care was legally and factually distinct. Regardless of the conclusion reached in the criminal investigation against the applicant, the public care case was thus not a direct sequel to the former.”

Nor was a sufficient link between the two proceedings created by the language used by the domestic court: “the impugned ruling of the Supreme Administrative Court in no way stated that the applicant was criminally liable with regard to the charges which the prosecutor had dropped”.

“Whenever the question of the applicability of article 6(2) arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link, as referred to above [ie in the discussion of the previous case law], between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment; to engage in a review or evaluation of the evidence in the criminal file; to assess the applicant’s participation in some or all of the events leading to the criminal charge; or to comment on the subsisting indications of the applicant’s possible guilt.”

“Having regard to the nature of the article 6(2) guarantee outlined above, the fact that section 133 of the 1988 Act was enacted to comply with the respondent state’s obligations under article 14(6) ICCPR, and that it is expressed in terms almost identical to that article and to article 3 of Protocol No 7, does not have the consequence of taking the impugned compensation proceedings outside the scope of applicability of article 6(2), as argued by the Government. The two articles are concerned with entirely different aspects of the criminal process; there is no suggestion that article 3 of Protocol No 7 was intended to extend to a specific situation general guarantees similar to those contained in article 6(2). Indeed, article 7 of Protocol No 7 clarifies that the provisions of the substantive articles of the Protocol are to be regarded as additional articles to the Convention, and that ‘all the provisions of the Convention shall apply accordingly’. Article 3 of Protocol No 7 cannot therefore be said to constitute a form of lex specialis excluding the application of article 6(2).”

The lex specialis argument was therefore roundly rejected.

“107.  … In this respect, the court observes that proceedings under section 133 of the 1988 Act require that there has been a reversal of a prior conviction. It is the subsequent reversal of the conviction which triggers the right to apply for compensation for a miscarriage of justice. Further, in order to examine whether the cumulative criteria in section 133 are met, the Secretary of State and the courts in judicial review proceedings are required to have regard to the judgment handed down by the CACD [the Court of Appeal Criminal Division]. It is only by examining this judgment that they can identify whether the reversal of the conviction, which resulted in an acquittal in the present applicant’s case, was based on new evidence and whether it gave rise to a miscarriage of justice.

108.    The court is therefore satisfied that the applicant has demonstrated the existence of the necessary link between the criminal proceedings and the subsequent compensation proceedings. As a result, article 6(2) applied in the context of the proceedings under section 133 of the 1988 Act to ensure that the applicant was treated in the latter proceedings in a manner consistent with her innocence.”

Conclusion on issue 1

Issue 2: Is section 133(1ZA) incompatible with article 6(2)?

“clarifying that the voicing of suspicions regarding an accused’s innocence was conceivable as long as the conclusion of criminal proceedings had not resulted in a decision on the merits of the accusation, but that it was no longer admissible to rely on such suspicions once an acquittal had become final.”

In Sekanina , the domestic court rejected the applicant’s claim for compensation for detention, saying that, in acquitting him, the jury took the view that the suspicion was not sufficient to reach a guilty verdict, but “there was, however, no question of that suspicion’s being dispelled” (para 29). The European court said that this left open a doubt as to the correctness of the acquittal and was incompatible with the presumption of innocence.

LORD KERR: (dissenting)

Introduction

Innocence

The Strasbourg jurisprudence

Conclusion