Hallam; Nealon v Secretary of State For Justice [2019] UKSC 2, [2020] AC 279

Judgment

In the matter of Hallam; Nealon v Secretary of State for Justice [2019] UKSC 2, [2020] AC 279, the Supreme Court by a majority dismissed the appeals and refused to grant declarations that section 133(1ZA) of the Criminal Justice Act 1988, inserted by the Anti-social Behaviour, Crime and Policing Act 2014, is incompatible with article 6(2) of the European Convention on Human Rights, which enshrines the presumption of innocence.

Both appellants had their convictions quashed by the Court of Appeal (Criminal Division) on the basis that fresh evidence rendered their convictions unsafe. Mr Hallam’s conviction for murder, conspiracy to commit grievous bodily harm and violent disorder was quashed after photographs found on his phone, which had been seized but not examined at the time of arrest, showed him with a witness on the day after the murder, undermining the prosecution’s case that he had concocted a false alibi. The CACD held that the cumulative effect of this and other factors was sufficient to render the conviction unsafe, but declined counsel’s invitation to state that Mr Hallam was innocent. Mr Nealon’s conviction for attempted rape was quashed after DNA evidence, from probable saliva stains on the victim’s blouse and bra, showed the presence of a male profile other than that of Mr Nealon. The CACD held that while the fresh evidence did not demolish the prosecution case, it could well have led to acquittal had it been heard by the jury. Both appellants spent many years in prison before their convictions were quashed. Mr Hallam served seven years and seven months; Mr Nealon served seventeen years.

Both appellants applied for compensation under section 133 of the Criminal Justice Act 1988 as amended. Section 133 was originally enacted to give effect to the United Kingdom’s obligations under article 14(6) of the International Covenant on Civil and Political Rights and provides for compensation where a person’s conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Following the decision of the Supreme Court in R (Adams) v Secretary of State for Justice, which held that the term “miscarriage of justice” in the unamended section covered cases where the fresh evidence so undermined the prosecution case that no conviction could possibly be based upon it, but did not require proof of innocence, Parliament amended section 133 by inserting section 133(1ZA), which provides that there has been a miscarriage of justice if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence. The Secretary of State refused both applications, taking the view that the fresh evidence, although sufficient to undermine the safety of the convictions, did not establish beyond reasonable doubt that the appellants did not commit the offences. Each decision letter concluded by emphasising that nothing in it was intended to undermine the quashing of the conviction and that the applicant was presumed to be and remained innocent of the charge.

The appellants sought judicial review and a declaration that section 133(1ZA) was incompatible with article 6(2) of the Convention. The Divisional Court held that it was bound by Adams and by R (Allen) v Secretary of State for Justice to hold that article 6(2) had no application to section 133, notwithstanding the decision of the Grand Chamber in Allen v United Kingdom to the contrary. It further held that the provision was in any event compatible with article 6(2) because it did not require proof of innocence in a general sense but only that a new fact showed that the person did not commit the offence. The Court of Appeal considered itself bound by Adams to hold that article 6(2) was not applicable, but also indicated that, if not so bound, it would have followed the Strasbourg jurisprudence including Allen v United Kingdom, which it regarded as clear and constant. It agreed with the Divisional Court that section 133 was in any event compatible with article 6(2).

The appeals raised two principal questions. The first was whether article 6(2), which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, applies to decisions under section 133, which are taken after the criminal proceedings have concluded. The second, arising if article 6(2) does apply, was whether the definition of miscarriage of justice in section 133(1ZA) is incompatible with it.

On the first issue, the appellants submitted that the Supreme Court should depart from its decision in Adams in the light of the subsequent Grand Chamber judgment in Allen v United Kingdom, which held that article 6(2) applied to decisions under section 133. That judgment was based on an extensive review of the Strasbourg case law concerning the so‑called “second aspect” of article 6(2), which requires that persons whose criminal proceedings have concluded by acquittal or discontinuance should not be treated by public officials as though they are in fact guilty. The Grand Chamber held that article 6(2) applied to proceedings under section 133 because there was a sufficient link between the quashing of the conviction and the claim for compensation, the link being established by the fact that the reversal of the conviction triggered the right to apply for compensation and the Secretary of State was required to examine the judgment of the CACD to determine whether the statutory criteria were satisfied. The court rejected the argument that article 3 of Protocol No 7, which provides a right to compensation in similar terms but has not been ratified by the United Kingdom, was lex specialis which excluded the application of article 6(2).

Lord Mance, with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Lloyd‑Jones agreed, declined to follow the Strasbourg jurisprudence to the extent that it went beyond precluding reasoning that suggests a defendant should have been convicted of the offence with which he was charged. He took the view that the extension of article 6(2) beyond pending criminal proceedings, although accepted in early Strasbourg cases where the issue was close to the criminal trial, had subsequently developed in a manner which was unsatisfactory and lacked coherence. He noted in particular the difficulty created by the fact that the same factual issues which arise in criminal proceedings may also arise in other legal contexts where a different standard of proof applies, and that to prevent a civil court from making findings on the balance of probabilities because of an acquittal in criminal proceedings was both unprincipled and unworkable. He considered that the distinction drawn in some of the case law between cases where there had been an acquittal on the merits and cases where criminal proceedings had been discontinued was difficult to apply and to justify, and that the test of whether there was a sufficient link between the criminal and subsequent proceedings was both vague and inconsistently applied. He observed that the Strasbourg court itself had acknowledged that there was no single approach to determining whether article 6(2) had been violated and that the language used would be of critical importance. In his view the proper principle was that a court should not express itself in terms which take issue with the correctness of a criminal acquittal or discontinuance, but it was legitimate to determine civil issues, including claims for compensation, on a different standard of proof even if this led to findings inconsistent with an acquittal.

Lord Mance further concluded that even if article 6(2) applied in the wider sense suggested by the Strasbourg case law, section 133(1ZA) was not incompatible with it. He reasoned that although it was legitimate under the Strasbourg case law, as illustrated by Allen v United Kingdom, to refuse compensation where the case fell within category three in Adams, namely where the conviction was quashed because the fresh evidence meant a reasonable jury might or might not have convicted, it must equally be legitimate to require a claimant to show that the case falls within category one or category two. He considered that there was no sensible distinction in Convention terms between requiring a claimant to prove that he did not commit the offence and requiring him to prove that there was no evidence on which he could possibly have been convicted. In either event the question is whether the acquittal is undermined by the language used, and in his view the Secretary of State’s decisions in these cases, which were concerned with whether the statutory test was satisfied, did not undermine the acquittals. He noted the Explanatory Memorandum to Protocol No 7, which indicated that the intention was to require compensation only in clear cases where the person was clearly innocent, and observed that this understanding had not been addressed by the Strasbourg court. He emphasised the clear understanding of the drafters that a provision such as now exists in section 133(1ZA) was contemplated. He acknowledged that the ECtHR in Allen had said that the Explanatory Memorandum must be considered to have been overtaken by intervening case law, but questioned on what basis this could be so.

Lord Wilson agreed with Lord Mance but expressed the position in starker terms. He took the view that the Strasbourg jurisprudence on article 6(2), in extending its application beyond pending criminal proceedings, had allowed its analysis to be swept into hopeless and probably irretrievable confusion. He considered that on any ordinary reading of the text, article 6(2) is limited to persons charged with a criminal offence, and that once criminal proceedings have concluded there is no basis for any presumption of innocence because the acquitted defendant has no need for a mere presumption but instead enjoys an irrebuttable fact of innocence for the purposes of the criminal law. He observed that the ECtHR had divorced the presumption from its proper context and launched article 6(2) into a separate orbit. He considered that the ECtHR had blurred the crucial distinction between guilt for the purposes of the criminal law and guilt for other purposes determined on a different basis. He noted the difficulty created for civil claims by victims and for child care proceedings, where it is often necessary to make findings on the balance of probabilities which could not be made to the criminal standard, and expressed the view that if article 6(2) truly applied to such proceedings it would be impossible for judges to give proper judgment without violating it. He considered that the presumption of innocence has no place in proceedings where conviction and punishment are not in issue, and that section 133 proceedings are not part of the criminal process but concern a distinct and limited civil right to compensation. He therefore concluded that article 6(2) has simply no application to section 133 and that accordingly section 133(1ZA) cannot be incompatible with it. He added that even if article 6(2) did apply, section 133(1ZA) would not violate it because what it requires is not proof of innocence in the sense of being unconvicted and unpunishable, which is already established by the quashing of the conviction, but proof of eligibility for compensation, which is a different matter.

Lord Hughes agreed with Lord Mance and Lord Wilson. He reviewed the Strasbourg case law in detail and concluded that it had developed piecemeal without standing back to examine the logical and jurisprudential basis for the extension of article 6(2) beyond criminal proceedings. He considered that the concept of link was not critical and that the court had grappled frequently with the inevitable tension between the desire to protect the unconvicted accused and the reality that the outcome of the criminal trial cannot govern all adjudication on the same factual issues. He noted that the three United Kingdom jurisdictions all depend on a marked and principled difference between proof beyond reasonable doubt for conviction and proof on the balance of probabilities in most other areas of adjudication, and that once this difference is recognised it is plain that civil proceedings simply cannot be governed by the criminal standard. He observed that the distinction drawn in Sekanina between discontinuance and acquittal was unexplained and questionable, and that the decisions in cases such as Y v Norway and Orr v Norway, which appeared to require civil courts to adopt circumlocutions to avoid using language describing the elements of a tort which also constituted a crime, did no service to transparency. He considered that the proper approach was that article 6(2) requires that the acquitted accused be treated as unconvicted, immune from punishment and not characterised as a criminal, but not that he escapes all consequences of the ordinary application of his country’s rules as to evidence and the standard of proof outside criminal trials. In relation to section 133, he took the view that compensation proceedings, although sequential to the criminal trial, are not part of the criminal process but concern a distinct and limited civil right, and accordingly the presumption of innocence has no place in them. He added that even if article 6(2) applied, to require a claimant to prove eligibility under section 133(1ZA) was not a breach, because what is meant by innocence in article 6(2) is being unconvicted and unpunishable, not being exonerated on the facts. He emphasised the distinction between innocence in the sense of not having been proved guilty to the criminal standard, which status the claimant already enjoys once the conviction is quashed, and exoneration on the facts, which is what section 133(1ZA) requires to be established as a condition of eligibility for compensation.

Lady Hale and Lord Lloyd‑Jones each agreed with Lord Mance. Lady Hale indicated that she had initially been disposed to think that the Strasbourg court would find a violation, but had been persuaded that this was not as clear as once she thought. She noted the distinction drawn in the Strasbourg case law between claims by defendants for costs or compensation and civil claims by victims, and expressed agreement with Lord Mance that the real test should be whether the court determining the claim has suggested that the criminal proceedings should have been determined differently. She took comfort from the fact that some of the more problematic chamber decisions, such as Orr v Norway, had been by narrow margins, and detected signs that the court might be moving towards the more limited approach suggested by Lord Phillips in Serious Organised Crime Agency v Gale. She considered that the issue of incompatibility would be better addressed in a case which fell clearly within category two in Adams, where it might be difficult to explain the difference from a category one case without casting doubt on the acquittal, but that in the present cases, which were category three cases like Allen, the Strasbourg court was unlikely to find a violation. She added that where a statutory provision may or may not lead to a violation it is not appropriate to make a declaration of incompatibility in proceedings brought by individuals in respect of whom the Strasbourg court is unlikely to find a violation.

Lord Reed and Lord Kerr dissented. Lord Reed, with whom Lord Kerr agreed, took the view that the Supreme Court should depart from its decision in Adams in the light of the subsequent Grand Chamber judgment in Allen v United Kingdom, which was carefully considered, based on detailed analysis of the case law, consistent with a line of authorities going back decades, intended to provide authoritative guidance, and had been followed in numerous subsequent judgments. He considered that the reasoning in Adams, which was based on the propositions that article 3 of Protocol No 7 was lex specialis which excluded article 6(2), that proceedings under section 133 were procedurally separate from criminal proceedings, and that a refusal of compensation did not undermine the acquittal, was unpersuasive. He noted that the lex specialis argument had been roundly rejected by the Grand Chamber, that the separate proceedings argument overlooked the decisive link between the criminal proceedings and the compensation claim, and that the argument about not undermining the acquittal went to compliance rather than applicability. He observed that there were no special circumstances of the kind which might justify not following a clear and constant line of Grand Chamber jurisprudence, and