,Following the refusal of the Supreme Court on 30th January 2019 to declare the Governments statutory test for compensation as unlawful, the cases of Victor Nealon and Sam Hallam have been slowly navigating their way to determination by the European Court of Human Rights.
A significant moment was recently reached in the case as Justice, the highly respected human rights organisation, have made a substantial intervention in the cases.
We previously intervened in the UK Supreme Court, which by a majority, found against the appellants in 2019. The case concerns whether the amended compensation scheme for England, Wales and Northern Ireland is incompatible with the presumption of innocence, protected by Article 6(2) ECHR. The test, amended in 2014, requires an applicant to demonstrate beyond reasonable doubt that they did not commit the offence for which their conviction has been quashed. This is an almost impossible task.
Moreover, as our intervention makes clear, this requires applicants to fulfil yet another hurdle to receiving recognition that they should never have been convicted – a position that by this stage in the case the Criminal Cases Review Commission and Court of Appeal have accepted. Compensation cannot undo the harm caused through years of wrongful incarceration. But it can offer some recompense. By requiring innocence to be proved, the Government is casting doubt on whether the conviction should have been quashed. This clearly interferes with the right to be presumed innocent until proven guilty.
Our intervention draws attention to the way international instruments and other jurisdictions interpret the right to compensation and, most importantly, that almost all Contracting Parties to the ECHR (including Scotland and Ireland) have managed to establish tests that do not offend the presumption of innocence.
The carefully crafted submissions of Justice can be read in full here: https://files.justice.org.uk/wp-content/uploads/2021/03/29141726/JUSTICE-Nealon-and-Hallam-v-UK-written-submissions-.pdf
The issues at stake could not be greater. As Lord Kerr said in the Hallam case:
“The opportunity to proclaim one’s innocence and the right to benefit from the recognition and acceptance of that condition lies at the heart of much of the dispute in this case and much of the case law of the Strasbourg court on the subject. But an inevitable sub-text is that establishing innocence as a positive fact can be an impossible task. This is especially so if conventional court proceedings do not provide the occasion to address, much less resolve, the issue.”
Accordingly, as Justice rightly point out this then places an important burden on any state scheme for compensation to get the balance right and not to impose an obligation on the person declared wrongfully convicted to have to prove their innocence a second time.
The UN Human Rights Committee when considering the Governments new test concluded that the new definition of “miscarriage of justice” inserted by section 133(1ZA) of the Criminal Justice Act 1988 in 2014. The Committee noted its concern that the new test "may not be in compliance with article 14(6) of the Covenant” and called on the UK to “review the new test for miscarriage of justice with a view to ensuring its compatibility with article 14(6) of the Covenant.
Justice notes that for those states that had requirements to differing extents for an applicant to prove innocence each has altered its test so that it is not incompatible with the presumption of innocence.
In the writers previous articles he made the point that how we treat the wrongfully convicted says everything about the sort of society we want to be.
Baroness Kennedy QC put it far more eloquently saying:
“When a case has gone wrong and new material comes to light which changes the whole complexion of the case, and it becomes clear that a jury in possession of all the evidence would have reached a different verdict, those who have suffered should have some compensation. To expect them to prove that they were innocent beyond reasonable doubt is to add to the injustice they have already suffered. Miscarriages of justice lead to ruined lives. Families are destroyed. People often end up without partners when they come out of prison. They lose jobs and homes. The mental despair and anguish is never fully resolved. That is why they need to have such real help afterwards. People’s lives never go back to how they were. This is where we find, as a decent society, that we have to make amends.”
One of the fundamental problems with the governments test is it ascribes a test which the Court of Appeal Criminal Division can never meet thereby removing the prospect of any applicant gaining any significant support during their appeal process. As the Lord Kerr observed in Adams:
"I cannot accept that the section imposes a requirement to prove innocence. In the first place, not only does such a requirement involve an exercise that is alien to our system of criminal justice, that system of justice does not provide a forum in which assertion of innocence may be advanced. An appeal against conviction heard by the Court of Appeal (Criminal Division) is statutorily required to focus on the question whether the conviction under challenge is safe. In a number of cases, evidence may emerge which conclusively demonstrates that the appellant was wholly innocent of the crime of which he or she was convicted but that will inevitably be incidental to the primary purpose of the appeal. The Court of Appeal has no function or power to make a pronouncement of innocence. It may observe that the effect of the material considered in the course of the appeal is demonstrative of innocence but it has no statutory function to make a finding to that effect: R v McIlkenny (1991) 93 Cr App R 287.”
Justice is right that to ask those so seriously damaged by what has happened to them by their wrongful conviction, often having spent not just years but decades in prison, to prove their innocence a second time only serves to perpetuate their trauma.
We now await the Governments submission in response with an expectation that we can then get on and hear this case as soon as the Court can practically accommodate it, time moves at a very different pace however for those awaiting justice in the ECHtR.
And in the meantime:
The Court of Appeal quashing notorious convictions as it has in recent weeks or a call for the review of the appeal system by the Westminster Commission does not seem enough unless we actually get on and end this cruel punishment of the wrongfully convicted, after all what's the point of having your innocence restored to you if the state does not then recognise it ....