On 30th January 2019 the Supreme Court delivered its decision in the case of R (on the application of Hallam) (Appellant) v Secretary of State for Justice (Respondent) R (on the application of Nealon) (Appellant) v Secretary of State for Justice (Respondent) [2019] UKSC 2[1]
This focussed on a long running legal fight over whether the wrongfully convicted should receive miscarriage of justice compensation.
This might be an issue which the lay observer might conclude is a misnomer, as it may be considered that it is obvious that if you are wrongfully convicted you should be compensated for what has happened to you. Yet the law has developed a remarkable ability on occasions to ensure that common sense outcomes can often be the least likely result to be delivered.
Take these cases for example. In the Hallam Case his conviction for murder was quashed ostensibly on the basis that the evidence pointed to the fact that he was not at the crime scene. In the Nealon case after 17 years the DNA evidence on a victims clothing was discovered to be that of an unknown male and not Victor Nealon’s.
Yet legal absurdity it seems is never far away on this topic, take for example the case of Ian Lawless who was the only winning applicant in the cabal of miscarriage applicants in R on the application of (Ali & Others) v SSJ [2013] EWHC 72 (Admin)[2]. The unfortunate Mr Lawless had been convicted of his own confession to acting as lookout in a murder case, the confession was pure fantasy and the Court having heard Expert evidence from Gisli Gudjonsson, the world-renowned psychologist with expertise on false confessions, concluded the conviction was unsafe. The Secretary of State for Justice response was to boldly argue in Court that there was the prospect of Mr Lawless facing a re-trial even though the only evidence against him was his own confession. An argument swiftly dismissed by the Court.
Of course, not all the arguments over the scheme are based on a nonsensical proposition, and it is fair argument that the general public would not expect to see those who get their convictions quashed on a technicality benefiting from compensation. Take a murder case where a serious error is made in the trial but there remains a good deal of evidence against the appellant. The Court must quash if justice demands it, but no right-thinking person would expect compensation to follow, the only likely outcome will usually instead be a re-trial. Sometimes the evidence remaining may be extremely tenuous , but nonetheless a re-trial may be ordered .
Take for example the unfortunate Barry George one of the losing applicants in the Ali Case , where there was a re-trial this then in the Courts view operated to potentially extinguish their prospect of securing miscarriage compensation unless something arose in the re-trial that warranted compensation . This is even though few would consider that Barry George was appropriately convicted, and the re-trial Jury agreed.
It should also be remembered that the Court of Appeal Criminal Divisions approach is rigorous, if the court determines a conviction is unsafe then we can be sure in assuming that the Court has fully tested the evidence to make that determination , although it is extremely unlikely the Court would ever declare an appellant innocent as its focus as required by statute is only to determine safety . This has been illustrated recently in the cases of The Oval Four see for example the Courts judgment in R v Stephen Lawrence Simmons [ 2018 ] EWCA Crim 114 in this and the appeals that followed the Court through the Lord Chief Justice in quashing convictions as a result of a Police fit up said this at the end of the judgment :
“We would wish only to note our regret that it has taken so long for this injustice to be remedied”
If that is evidence of the difficulty the Court has in addressing cases where someone may be innocent , no such issue arises with regard to quashing convictions on what is regarded as a technicality . However these cases have created an uncomfortable tension in developing a system seeking to avoid compensating those who were deemed "lucky " to get their convictions quashed and the genuine victim of a miscarriage of justice . It was an issue which engaged the Supreme Court in R (on the application of Adams) and others v Secretary of State for Justice [2011] UKSC 18 [3]
This was also a tension which then fell to be pontificated upon by the Politicians during the Coalition Government and was led by the Secretary of State for Justice Chris Grayling, this represents a particularly unedifying period of justice governance. In fact, almost without exception, every reform introduced in this period has fallen, yet the damage caused to the plight of the wrongfully convicted remains unchecked.
To understand what is at stake it is necessary to deconstruct what the complex jurisprudence says on this issue, it is complex and has been subject to considerable divergent judicial interpretation having uniquely been twice before the Supreme Court and previously before its earlier construct the House of Lords Committee . No constitution which deliberated upon the case could easily agree.
The following slides from a recent lecture to Manchester University on the issue might help break down the issue:
This was the starting point for the establishment of what was a discretionary scheme and has ultimately developed into the statutory test we now have in place. This was the governments international commitment to establishing a miscarriage compensation scheme.
14( 6 ) made clear that where the newly discover fact which would be the fresh evidence leading to the quashing of the conviction showed a miscarriage of justice had occurred then compensation would follow the event .
This was then established in Section 133 of the Criminal Justice Act 1988 as amended and as can be seen from the above slide , the original test required it to be shown beyond reasonable doubt that that as a result of the newly discovered fact that there had been a miscarriage of justice .
This led to a range of jurisprudence on the issue as various applications for compensation which were refused brought challenges before the Court .
There was a focus on what amounted ot a miscarriage of justice and this was considered by the House of Lords in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1 .
This case rested on a judicial disagreement between Lord Steyn and Lord Bingham on what amounted ot a miscarriage of justice. Lord Steyn expressed the view that this phrase only extended to the conviction of someone subsequently shown to be innocent. Lord Bingham of Cornhill expressed doubt as to whether this was correct. Both were agreed that section 133 was enacted to give effect to article 14(6) and that the meaning of the latter should govern the interpretation of the section. They were not, however, agreed as to the meaning of article 14(6) .
Other decisions included R (Murphy) v Secretary of State for the Home Department [2005] EWHC 140 (Admin), [2005] 1 WLR 3516; R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin); In re Boyle’s Application [2008] NICA 35; R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] 2 All ER 1; R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin).
When the Supreme Court was tasked to clear the matter up in Adams they adopted a modified description of the 4 tests advanced by Lord Dyson in the Court of Appeal namely:
- Where it showed a defendant was innocent of the crime (‘category 1’)
- Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (‘category 2’)
- Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (‘category 3’)
- Where something had 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 (‘category 4’)
The Court concluded that Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt.
The Majority considered that 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’ 55.
It should be noted that in the Ali Case when looking at the case of Ian Lawless the Tribunal had concluded that the only effective evidence was that of his own false confession to the murder. Accordingly, there was no other evidence upon which the jury properly directed could have returned a guilty verdict. It is not accepted that the Court had left the position confusing as The Right Honourable Damian Green MP introducing the Government Bill asserted, the Court was simply carefully applying the Adams Test and in doing so regretably declined all the other claimants.
And so, the Government passed the new law as in the below slide, it was subject to a chequered parliamentary journey and the House of Lords did its best to try to water down the proposal (including some members of the original court constitution in Adams). The compromise wording was no compromise at all, however.
It now required the applicant to prove beyond reasonable doubt that they did not commit the offence as a result of the newly discovered fact. We argued that this was wholly wrong and effectively required a person to prove their innocence a second time. The governments answer to this was to seek to make an artificial distinction between general innocence and the newly discovered fact.
However, this represented it was submitted a direct breach of Article 6 (2) of the ECHR which enshrined the fact that a person was entitled to the presumption of innocence.
The Court was of the view that this was not a “lex specialis” that is to say a special case not to apply Article 6 ( 2 ) . It considered these issues in the case of Allen considered in the ECHtR. This was a case considered under the old miscarriage of justice compensation test before the coalition government amendment .
The Court at that time concluded that the language deployed in making the assessment at the time had not employed language which was incompatible with the presumption of innocence . It was argued however that if the Court came to consider the working of the new test it would conclude the presumption of innnocence had been so breached .
By the time the Case of Hallam and Nealon reached the Court of Appeal the arguments and views of the Court had developed and the Court of Appeal accepted there was a clear and consistent line of authority that article 6 ( 2 ) applied to Section 133 as amended but considered that in the ECHtR considered the matter it would not find a breach . The Court considered itself bound by Adams .
So the stage was set for the Supreme Court to consider the issues . We invited the Court to follow the “clear and consistent” line of authorities from Strasbourg .
We asked the Court to conclude that the Governments new test was incompatitble with Article 6 ( 2 ) as it called into doubt the innocence of the applicant .
Justice intervened following publicaiton of its Report on the plight of the wrongfully convicted [4] Supporting Exonerees: ensuring accessible, continuing and consistent support .
As they summmarise on their website :
“This report demonstrates how the criminal justice system fails to understand the issues facing exonerees: including practical assistance needed upon release, the negative impact of incarceration on mental health and the difficulties readjusting to everyday life. Exonerees do not receive the services and support needed to acclimatise and return to normal life upon release from prison. We note that some support services are available, but these are poorly resourced, often do not address the complex range of problems faced by exonerees and are largely available on an ad hoc basis. We recommend ambitious development of existing services that would provide accessible, consistent and continuing support for exonerees.
We also set out that measures for exonerees should go further than financial and non-financial support and include a public acknowledgement that a wrong has happened.
We make 14 recommendations for reform, including:
- Better management of the transition from incarceration to release.
- The need for specialist psychiatric care.
- The setting up of a residential service to provide practical and welfare support to exonerees.
- An independent body to determine whether applicants are eligible for compensation.
- Automatic compensation for wrongful imprisonment, subject to certain exceptions.
- An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry.”
So over 2 days in May 2018 battle lines were drawn for the Supreme Court to consider the issue of whether the government was breaching the presumption of innocence and this was broadcast to the media and interest parties[5]
Judgment was handed on 30th January 2019 and the Court to the disappointment of the wrongfully convicted and many interested parties refused the appeal and found in favour of the Government on a 5:2 Majority. It may be summarised as follows:
And so, the Applicants have now accepted the Courts tacit invitation to refer the case to the ECHtR.
What is happening now ? The cases can take some time to navigate through the Court due to the demands upon the Court , but the case is now in what is called a “friendly settlement” Stage , however the UK Governent is unlikely to seek settlement as it is clearly in their interest to minimise the amount of compensation claims it considers .
Once this stage is completed in November the case will advance to further Court directions and it is to be hoped this will lead to the case progressing in front of the Grand Chamber as soon as practicable .
We argue that the way in which this has developed is simply wrong and is wholly detached from the plight of those the Court has declared as wrongfully convicted . We strongly agree with Lord Kerr that phraseology should not determine the ability of those who may be innocent but may not be able to prove it from being denied compensation .
The Supreme Court ( save for the disenting voices ) seem to have taken the case as a vehicle to attack the Jurisprudence of the Court of Human Rights , but how does that help the people who find their lives destroyed by a miscarriage of justice , denied their lives for years if not decades and released into an “alien world” , many of them never recover from what has happened to them , they suffer signficant mental health consequences and are unable to cope with the world they now find themselves parachuted back into .
There is no support or safety net , it is as if they do not matter , they are the forgotten victims of our justice system .
We have held ourselves up as having a justice system to be admired across the world, yet when Iran and China have a better record of compensating the wrongfully convicted there is something serious wrong. See for example this recent BBC News Report - https://www.bbc.co.uk/news/world-asia-china-53666557
To some degree this is part of a wider theme of how we also deal with miscarriages of justice and this is illustrated by the approach to older historical miscarriages of justice (a topic for our next article).
The only hope now is to get the case heard in Strasbourg as soon as practicable, particularly as the Government continues to make murmurings about wanting to withdraw from the ECHtR and establish its own bill of rights.
Some may well rightly think such a proposal has less to do with putting a post Brexit UK in charge of its own legal rights and has more to do with diminishing the ability of citizens to challenge their government.
Mark Newby
October 2020
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[1] https://www.bailii.org/uk/cases/UKSC/2019/2.html
[2] https://www.bailii.org/ew/cases/EWHC/Admin/2013/72.html
[3] https://www.supremecourt.uk/cases/docs/uksc-2010-0012-judgment.pdf
[4] https://justice.org.uk/supporting-exonerees-ensuring-accessible-continuing-and-consistent-support/