Court Finds that the ‘Virtually Insurmountable’ Test for Compensation as a Victim of a Miscarriage of Justice Does not Breach Article 6(2)

Victor Nealon (N) and Sam Hallam (H), otherwise unconnected cases, were convicted, respectively, of attempted rape and murder. After, in the case of N, 17 years, and H, seven years, their convictions were quashed by the Court of Appeal (Criminal Division) on grounds of fresh evidence. N could point to DNA evidence implicating another person; H could point to evidence leading to doubt he was on the scene at the time of the murder. In both cases the Court of Appeal declined (as is customary) to state they were innocent of the crimes; both have maintained their innocence.

Section 133 Criminal Justice Act 1988 provides eligibility for compensation when a conviction is overturned by a new or newly discovered fact which shows beyond reasonable doubt there has been a miscarriage of justice. Section 133(1ZA) defines a miscarriage of justice for the purposes of compensation as where the newly discovered fact shows ‘beyond reasonable doubt the person did not commit the offence’.

Having had their convictions quashed, N and H applied for compensation under the statutory scheme. That application was refused, and the appellants’ appeals before the High Court, Court of Appeal, and Supreme Court failed. Before the Supreme Court they sought a declaration that s.133(1ZA) was incompatible with Article 6(2) of the European Convention on Human Rights (ECHR); the presumption of innocence. The Supreme Court ([2020] AC 279), held by a majority that the presumption of innocence remained relevant and applicable, but that its only relevance is that a public authority is prohibited from suggesting the applicant should have been convicted of the offence. The Court found further, by a majority, that even if (or to the extent that) Article 6(2) did apply, it was not violated by s.133(1ZA) as the test's requirement to consider whether a newly discovered fact shows a miscarriage of justice had occurred (and the rejection of that assertion) does not impute a suggestion that the applicant should have been convicted. Their appeals in the Supreme Court were therefore dismissed by a 5:2 majority.

The appellants appealed to the European Court of Human Rights (ECtHR) seeking a declaration that s.133(1ZA) was incompatible with Article 6(2) ECHR. They argued that s.133(1ZA) was incompatible with the presumption of innocence because it required them to prove their innocence to be eligible for compensation as a victim of miscarriage of justice [27].

Held: by majority of 12:5 there was no violation of Article 6(2). The ECtHR affirmed [127–9] that Article 6(2) does apply to s.133(1ZA), in line with its earlier jurisprudence culminating in Allen v United Kingdom (25424/09, 2013). Over several decades the Court has developed two ‘aspects’ to the presumption of innocence. The presumption protects suspects and defendants on trial (the ‘first aspect’ of the presumption). But it also extends to persons accused but not convicted of crime so they cannot be treated as if they were guilty or remain under suspicion (the ‘second aspect’ of the presumption) [101–3]. A line of authority relating to this second aspect, which suggested the presumption of innocence offered different levels of protection depending upon whether the criminal proceedings had ended with acquittal or with a discontinuance, was abandoned [157–8; 163–7]. As such the sole test for whether Article 6(2) was breached in relation to proceedings taking place after criminal proceedings had been concluded with acquittal / discontinuance was whether the later proceedings imputed criminal guilt by reflecting an opinion that he or she is guilty, to the criminal standard, of the offence or that the applicant should have been convicted [168–9]. The Court finally held that the s.133(1ZA) test did not impute criminal guilt by this standard and so was not incompatible with the presumption of innocence [180–2].

The minority, meanwhile, said that the s.133(1ZA) test was ‘virtually insurmountable’ [dissent [8]]. Their central reasoning was that the section was incompatible with Article 6(2) because it allows or requires reconsideration of criminal guilt at a point where their conviction has been quashed and the presumption of innocence restored [5]. The test, they said, requires applicants to prove their innocence by way of new facts and as such were not regarded as innocent from the outset [5].

Commentary

This significant judgment seems to mark the end of a long-running tussle between the UK Courts and the European Court of Human Rights (ECtHR) as to the extension of the presumption of innocence to matters arising after an acquittal or discontinuance of criminal proceedings. In holding that s. 133(1ZA) is compatible with Article 6(2), the ECtHR, following the Supreme Court, has closed off any further realistic challenge to the regime for compensation as a victim of miscarriage of justice. That regime has been criticised as being far too restrictive, and virtually requires applicants to prove their innocence before obtaining compensation (see e.g. C Hoyle, L Tilt, ‘Not Innocent Enough’ (2020) Crim LR 29) a position which would on its face be incompatible with Article 6 of the convention and a reversal of the burden of proof (see discussion at [82] of the judgment). The question for the ECtHR in this case was how far the presumption of innocence is engaged and whether the test for applying for compensation under s.133(1ZA) was compatible with the presumption of innocence.

Article 6(2) safeguards the right to be ‘presumed innocent until proved guilty according to law’. In its ‘first aspect’ it is a procedural guarantee of safeguards up to and including the trial, such as the burden and standard of proof. Over time the ECtHR has developed a ‘second aspect’ to the presumption which comes into play once a person on trial has been acquitted or had the case against them discontinued; they continue to have the right to be treated as though innocent and free from the cloud of suspicion. When a defendant is acquitted, or when the criminal proceedings are discontinued before trial, a range of incidental proceedings can occur depending on the law in the contracting state. An acquitted defendant may be sued on the same facts in civil courts, or the defendant might sue for damages, or reimbursement of costs, etc. Applying for compensation as a victim of miscarriage of justice is a further example of proceedings incidental to an acquittal. The quashing of a conviction by the Court of Appeal is recorded as an acquittal if no retrial is ordered.

The statutory scheme for claiming compensation as a victim of miscarriage of justice is found in s.133 of the Criminal Justice Act 1988. The original incarnation required the applicant to show that a new or newly discovered fact showed beyond reasonable doubt there had been a miscarriage of justice. There was no definition of miscarriage of justice in s.133. Case law (namely R(Mullen) v Home Department [2004] UKHL 18) suggested four options:

Fresh evidence showed the defendant was innocent of the crime;

Fresh evidence so undermined the evidence against the accused that no conviction could possibly be based on it;

fresh evidence rendered 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

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

In R(Adams) ([2011] UKSC 18) the UK Supreme Court held by a majority that a ‘miscarriage of justice’ for the purposes of compensation was limited to situations (1) and (2). It found that (3) and (4) were not miscarriages of justice for the purpose of the Act. The problem this causes is that when the Court of Appeal allows an appeal against conviction it determines only whether the conviction is unsafe. The quashing of a conviction does not automatically mean a miscarriage of justice has occurred for the terms of s. 133, but may be any one of the four situations above. If the Court did say that the appellant fell into (1) or (2), that would realistically be determinative of the question for the purposes of compensation, but the Court rarely does that. As such, when an appeal against conviction is allowed and the appellant applies for compensation, the Minister for Justice was required at the time to determine whether the applicant was a victim of a miscarriage of justice using the above categories. That answer could be (and often was) no: the quashing of the conviction did not mean a miscarriage of justice had occurred. The statutory scheme created a small avenue to avoid paying compensation as a victim of miscarriage of justice and that was approved by Adams.

Meanwhile, the appellant in Allen v United Kingdom (25424/09, 2013) (who fell into category (3) above) applied for compensation but had the application refused. She argued that her Article 6(2) rights had been breached because the reasons given for refusing compensation under the statutory scheme gave rise to doubts about her innocence. The ECtHR held that Article 6(2) applied to determinations under s.133, but that the section (as it then was) did not breach it because the applicant was not required to prove her innocence and was not treated as if she was guilty [Allen at 133]. A negative decision by the Minister meant merely that the newly discovered fact did not show a miscarriage of justice had occurred, the decision did not doubt guilt in any wider sense. That decision was followed in subsequent cases in the ECtHR (e.g. Adams v United Kingdom 70601/11, 2013).

The government, however, decided to further narrow eligibility for compensation by inserting subsection 1ZA to s.133. That now defines a ‘miscarriage of justice’, for the purposes of compensation claims, as meaning only situation (1), above. It was under this new test that H and N applied for compensation having had their convictions quashed by fresh evidence in 2012 and 2014 respectively. Both applications were refused by the Minister and the present case arises from their application to have s.133(1ZA) declared incompatible with Article 6(2).

A key issue in the case before the ECtHR was a line of authority which appeared to give additional protection to an applicant who had been acquitted over an applicant whose case had been discontinued. The ECtHR had said in Sekanina v Austria (25 August 1993) that it was potentially acceptable to voice suspicions about an applicant's innocence if the proceedings had been discontinued, but it would breach Article 6(2) to rely on such suspicions once an acquittal had become final [see para. 157 of the present judgment]. Where the case had been discontinued, the key question was whether the response to the later proceedings involved an affirmation of criminal guilt, only if so would Article 6(2) be breached [155]. The logic would seem to be that discontinuance might not appear to have the same exonerating effect as an acquittal and so it may not be a breach to rely on residual suspicion to, for example, order the defendant to pay damages in a civil court.

This line of reasoning – treating the protection of the presumption of innocence differently depending upon the mechanism by which the presumption of innocence was restored – was criticised by the Supreme Court in this case (see e.g. para. [40] per Lord Mance, [85] per Lord Wilson). The ECtHR thought it was necessary to reconsider the principle of treating acquittals more favourably than discontinuations. The Court observed that the supposed additional exonerating effect of an acquittal over a discontinuance is in reality nuanced and not clear cut. At para 159 it said:

In some countries, such as the United Kingdom, the Prosecution might discontinue proceedings if there was insufficient evidence to pursue criminal charges. When this happens the defendant will not have had the opportunity to be acquitted, since the evidence against him was too weak to bring the case to trial in the first place, and yet the principle developed in Sekanina would suggest that if he were to make a claim against the State for compensation, the presumption of innocence would apply less rigorously than it would have done if there had been sufficient evidence to go to trial, but the trial ended in an acquittal.

Further, the Court recalled what it said in Allen (above), that the quashing of the conviction, which is technically an acquittal, had more in common with a discontinuance than an acquittal, and so there was no breach of Article 6(2) as the application of s.133 did not impute criminal guilt [para 160 of present case]. The Allen ruling, therefore ‘entailed a significant qualification regarding the kind of circumstances in which the Court would be prepared to accord the heightened level of protection of the presumption of innocence’ [161]. In reality, the Court said, many cases would fall into this grey area where an acquittal has more in common with a discontinuance. The Court concluded that it was no longer necessary nor desirable to maintain the distinction between acquittals and discontinuance in compensation cases and it was duly abandoned [167].

Having chosen to do so, the Court may have had a choice as to whether to raise / uphold the protection to the level afforded to acquittals, or whether to lower the protection to the level afforded to discontinuances. It chose the latter. From now on, incidental proceedings following acquittal / discontinuance would breach the presumption of innocence only ‘if they amounted to the imputation of criminal liability to the applicant’ [168]. Further, imputation of criminal liability means to reflect an opinion that he or she is guilty to the criminal standard of the commission of a criminal offence thereby suggesting that the criminal proceedings should have been determined differently [168].

That being the case, the Court found that the conclusion of the Minister that it was not shown beyond reasonable doubt by a new or newly discovered fact that the applicant did not commit the offence did not impute criminal liability and so did not breach the presumption of innocence [180]. Like the majority in the Supreme Court, the majority in the ECtHR relied on the need to show a miscarriage of justice by a new or newly discovered fact [180]:

The test in section 133(1ZA) of the 1988 Act required the Justice Secretary to comment not on the basis of the evidence as it stood at the appeal whether the applicant should be, or would likely be, acquitted or convicted … but only on whether the new or newly discovered fact showed beyond reasonable doubt that the applicant did not commit the offence in question … To find in the negative that it could not be shown to the very high standard of proof of beyond reasonable doubt that an applicant did not commit an offence – by reference to a new or newly discovered fact or otherwise – is not tantamount to a positive finding that he or she did commit the offence.

As the dissenters noted [section 3 of the dissent] the majority had succeeded in squaring the circle of finding Article 6(2) applicable but s.133(1ZA) not incompatible with it. They, along with Lords Reed and Kerr in the Supreme Court, found that the distinction between a requirement to show innocence (unacceptable in the majority's view) and a need to show innocence by a new or newly discovered fact (acceptable) was not a real one. It is only possible to assess the impact of a new or newly discovered fact in light of the rest of the evidence.

The majority judgment is also noteworthy for its comments on the wide degree of latitude it provides to national governments. Article 6(2) does not guarantee a right to compensation to the wrongfully convicted [172]. It was up to the government to decide how to define ‘miscarriage of justice’ and to draw a policy line as to who should be compensated as a victim of miscarriage of justice [172]. The Court was ‘not insensible’ to the impact of wrongful conviction but ‘its role is not to determine how States should translate into material terms the moral obligation they may owe to persons who have been wrongfully convicted’ [182].

As it stands, therefore, the scheme under s.133(1ZA) is compliant with domestic and international human rights law but not, perhaps, moral obligation. The judgment ends any further realistic challenge to the scheme and it will remain virtually impossible to obtain compensation as a victim of miscarriage of justice under it except in the most limited of circumstances. Given the well-publicised provision of compensation to victims of the Horizon Post Office scandal, this may well lead to victims of other, less infamous or well-known miscarriages of justice, wondering ‘why not me as well’?

Conclusion

The ECtHR's conclusion that the statutory scheme for compensation as a victim of miscarriage of justice under section s.133(1ZA) of the 1988 Act was compliant with Article 6(2) ends any further realistic challenge to the law in this area. As things stand, it will remain highly unlikely that most persons having their convictions quashed, who claim to be victims of a miscarriage of justice, will be compensated.