Justice – Strasbourg or Bust – The Fight for Miscarriage Compensation

Today at the Byline Times News Club the latest Edition of Proof Magazine from http://www.thejusticegap.com will be delivered which looks at the Prison Crisis and miscarriages of justice . This presents a perfect opportunity to formally launch the challenge  to the UK Government in the European Court of Human Rights following the Supreme Courts refusal of the Appeals of Sam Hallam and Victor Nealon on 30th January this year .

The Supreme Court ruled that the statutory provisions governing eligibility for compensation of persons whose conviction for a criminal offence is quashed are compatible with the presumption of innocence guaranteed by Article 6(2) of the European Convention of Human Rights (ECHR). This departs from the case law of the European Court of Human Rights (ECtHR). We  have now filed application to the ECtHR to rule on whether the provisions are a violation of Article 6(2) of the ECHR.

Section 133(1) of the Criminal Justice Act 1988 (CJA) provides for compensation following a reversal of a conviction or pardon. Section 133(1ZA) defines a “miscarriage of justice” as occurring when a new or newly discovered fact demonstrates that the person did not commit the offence. It requires the person to prove, for the purposes of compensation, that they were innocent. Of course, once a conviction is quashed, an individual should be presumed innocent, as they have no longer been proven guilty. Requiring an individual to prove innocence reverses this fundamental rule of justice, placing a near impossible burden on the applicant for compensation. A further difficulty with such a test is that the quashing court – the Court of Appeal Criminal Division – does not consider whether the appellant is innocent of the crime; it considers whether the conviction is unsafe. This is because the justice system determines guilt rather than innocence.

Turning to the cases under review : Mr Hallam served over seven years for a murder. His conviction was quashed on the basis of evidence that had not been disclosed to him at his trial. Mr Nealon served 17 years for an attempted rape. His conviction was quashed on the basis of DNA evidence. Despite the strong evidence that they did not commit these crimes, they were denied compensation as they were unable to produce evidence that satisfied the Secretary of State beyond reasonable doubt that they did not commit these offences.

Mark Newby , Solicitor for Victor Nealon said :

“How we treat the wrongfully convicted says everything about the sort of society we want to be. It should not be forgotten that the hurdle to even quash a wrongful conviction is set impossibly high and for those who have climbed that mountain it is just wrong to ask them to then scale the same mountain again and prove to the government beyond reasonable doubt that they are innocent.

If you weren’t at the scene of a murder or the DNA on a victims clothing wasn’t you but somebody else, what more should have to be said?

That is why we must now ask the European Court of Human Rights to intervene. Justice depends on it.”

And of Course as Justice have highlighted this is not just about compensation

Miscarriages of justice destroy lives, with individuals facing numerous difficulties on release from prison. JUSTICE’s report Supporting Exonerees: Ensuring accessible, consistent and continuing support (2018), highlights that there is no automatic accommodation, social security assistance or psychiatric assessment available to victims of miscarriage of justice. The report also records the hardship, difficulty in adjustment and trauma that victims of miscarriage of justice face for years after their release

The case is advanced on a number of detailed and complex arguments which will be distilled in a subsequent article but effectively it is maintained that the test does breach the presumption of innocence , it is not a special category ( lex specialis ) for which the operation of Article 6 ( 2 ) should be excluded . Rather than the previous jurisprudence from the court being inconsistent it is submitted the previous decisions have been carefully analysed and there is a clear and consistent line of authority which supports the applicants . We consider the European Court will reaffirm this .

Overall it is unsustainable to reach an artificial distinction between proving innocence on the basis of the newly discovered fact and as a whole it requires the same assessment .

As Lord Kerr [ dissenting indicated ]noted there will be many who are truly innocent but are unable to establish their innocence as a positive fact, and that this must form part of the backdrop to the proper approach to the application of Article 6(2) (paragraph 202); that there is a “clear and constant” line of jurisprudence from that court which establishes that the relevant question is “whether there was a link between the concluded criminal proceedings and the compensation proceedings; and that if there is doubt as to whether he should have been acquitted, the individual will not be able to avail of the Article 6(2) protection, but if he can show that he ought never to have been charged or convicted, he will (paragraph 205).

Accordingly the stage is now set for the final review of how our Justice System deals with the wrongfully convicted , if our system cannot act upon the plight of those it has recognised have been wrongly imprisoned there may be little hope left ……..



Categories: Articles and Speeches, Miscarriage, Miscarriage Compensation, News

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