Hallam, R (on the application of) v Secretary of State for Justice [2019] UKSC 2

Hallam and Nealon had their convictions quashed following fresh evidence but were refused compensation under section 133 of the Criminal Justice Act 1988 (as amended), which requires proof beyond reasonable doubt that the applicant did not commit the offence. The Supreme Court held, by majority, that this was compatible with article 6(2) ECHR.

Facts

The appeals concerned two appellants whose criminal convictions had been quashed by the Court of Appeal Criminal Division (CACD) following the emergence of fresh evidence, but who were subsequently refused compensation by the Secretary of State for Justice under section 133 of the Criminal Justice Act 1988, as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014.

Mr Hallam

Mr Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder. After serving seven years and seven months in prison, fresh evidence emerged, including photographs on his mobile phone showing him with a witness (Mr Harrington) around the time of the murder, which undermined the prosecution’s case that he had fabricated an alibi. The CACD quashed his conviction as unsafe but declined to declare him factually innocent. The Secretary of State refused compensation on the basis that the fresh evidence did not establish beyond reasonable doubt that he did not commit the offence.

Mr Nealon

Mr Nealon was convicted of attempted rape and spent 17 years in prison. Fresh DNA evidence obtained nearly 14 years after the offence revealed an unknown male’s DNA on the victim’s clothing in places where the attacker had ‘mauled’ her. The CACD quashed his conviction as unsafe. The Secretary of State refused compensation, noting the fresh evidence did not ‘demolish’ the prosecution case.

Statutory Framework

Section 133(1ZA), inserted by the 2014 Act, provides that there is a ‘miscarriage of justice’ only ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence’. This confined compensation to what the Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18 had identified as category (1) cases.

Issues

1. Whether article 6(2) of the European Convention on Human Rights (the presumption of innocence) applies to decisions on, or the criteria for, the award of compensation under section 133.
2. If article 6(2) is applicable, whether the definition of ‘miscarriage of justice’ in section 133(1ZA) is incompatible with article 6(2).

Arguments

The appellants argued that section 133(1ZA) effectively required them to prove their innocence, thereby violating the presumption of innocence under article 6(2). They relied on the Grand Chamber’s decision in Allen v United Kingdom (2013) 63 EHRR 10, which established that article 6(2) applied to compensation proceedings under section 133 where a sufficient link existed with the antecedent criminal proceedings.

The Secretary of State argued that the Court should follow Adams, which held that article 6(2) had no application to section 133; alternatively, that section 133(1ZA) was compatible with article 6(2) because it did not require proof of innocence in a general sense, but only that innocence be established by a new or newly discovered fact.

Judgment

The Supreme Court dismissed the appeals by a majority of five to two (Lord Reed and Lord Kerr dissenting), refusing to make a declaration of incompatibility.

Lord Mance (leading majority judgment)

Lord Mance expressed considerable reservations about the coherence of the Strasbourg jurisprudence on the ‘second aspect’ of article 6(2). He considered that the ECtHR case law had expanded article 6(2) beyond its natural sphere through the concept of a ‘link’ between criminal proceedings and subsequent proceedings, producing uncertain and shifting ground. He preferred the view expressed by Lord Phillips in Serious Organised Crime Agency v Gale [2011] UKSC 49, that article 6(2), if it applies at all after acquittal, prohibits only reasoning suggesting that the defendant should have been convicted.

On the second issue, Lord Mance concluded that, even if article 6(2) did apply, section 133(1ZA) was not incompatible with it. He emphasised the Explanatory Memorandum to Article 3 of Protocol 7, which made clear that compensation was intended only ‘in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent’. He found no logical basis to distinguish between categories (1) and (2) in Adams for Convention purposes.

Lady Hale

Lady Hale agreed article 6(2) was engaged but considered it was not clear that Strasbourg would find a violation in these particular cases, which fell within category (3), and that a declaration of incompatibility was inappropriate.

Lord Wilson

Lord Wilson considered that the ECtHR had ‘allowed its analysis to be swept into hopeless and probably irretrievable confusion’. He concluded conscientiously that he could not subscribe to the ECtHR’s analysis and therefore could not declare the legislation incompatible.

Lord Hughes

Lord Hughes held that article 6(2) had no application to section 133 claims at all, noting the marked and principled difference between proof beyond reasonable doubt and proof on the balance of probabilities, and that the presumption of innocence has no place in proceedings where conviction and punishment are not in issue.

Lord Lloyd-Jones

Lord Lloyd-Jones agreed with Lord Mance, observing that the specific issue of whether requiring proof of innocence violated article 6(2) had not been directly addressed by the ECtHR.

Dissenting Judgments (Lord Reed and Lord Kerr)

Lord Reed, dissenting, held that article 6(2) clearly applied to section 133 proceedings following Allen v United Kingdom, and that this court should depart from Adams. On the second issue, he considered the distinction between a requirement that innocence be established and a requirement that innocence be established by a new or newly discovered fact to be unrealistic. Section 133(1ZA) effectively required the Secretary of State to decide whether applicants had established their innocence, thereby casting doubt on their acquittals and infringing the presumption of innocence. Lord Kerr agreed.

Implications

The decision establishes that section 133(1ZA) of the 1988 Act is compatible with article 6(2) of the Convention as domestically applied. Persons whose convictions have been quashed following fresh evidence will be entitled to statutory compensation only where the new or newly discovered fact shows beyond reasonable doubt that they did not commit the offence.

The judgment is significant in illustrating the limits of the duty under section 2(1) of the Human Rights Act 1998 to ‘take into account’ Strasbourg jurisprudence. The majority was prepared to decline to follow a clear line of Strasbourg authority, including Grand Chamber decisions, where the domestic court considered that jurisprudence to be incoherent or where the specific point had not been directly decided by the Strasbourg court.

The decision also contains important guidance concerning the role of the CACD. The Court emphasised that it is not the function of the CACD to make findings of factual innocence; its role is confined to determining whether a conviction is unsafe. As Lord Mance observed, the CACD ‘does not possess any power to make formal findings or declarations of innocence’. Applicants should not ask the CACD to pronounce on innocence merely to strengthen a future compensation claim, and the absence of any such statement carries no adverse implication as to innocence.

The case demonstrates the tension between the narrow statutory compensation scheme, designed to give effect to the UK’s international obligations under article 14(6) of the ICCPR, and the expanding Strasbourg jurisprudence on the second aspect of article 6(2). It leaves unresolved whether a successful application to the ECtHR by the appellants would result in a finding of violation, a possibility which members of the majority expressly acknowledged.

Verdict: The appeals were dismissed. The Supreme Court refused to grant declarations of incompatibility, holding (by a majority of five to two, with Lord Reed and Lord Kerr dissenting) that section 133(1ZA) of the Criminal Justice Act 1988 is not incompatible with article 6(2) of the European Convention on Human Rights.

Source: Hallam, R (on the application of) v Secretary of State for Justice [2019] UKSC 2