Compensating injustices
Is failure to pay victims a breach of their human rights?
Should every miscarriage of justice entitle the victim to compensation? That’s a question the European Court of Human Rights may answer next Tuesday when it rules on two claims brought against the United Kingdom. The ruling will be binding but courts have struggled with the issues over the years and the outcome is far from certain.
Judges in Strasbourg will rule on two unrelated cases that were heard together in the courts of England and Wales because they raised similar issues.
Nealon
Victor Nealon was convicted in 1997 of attempted rape and given a sentence of life imprisonment with a minimum term of seven years. He served a total of 17 years and three months in prison.
In 2013 his conviction was quashed after further analysis of the clothes worn by the victim on the night of the attack revealed DNA belonging to an unknown male. Appeal judges accepted that the new evidence had not “demolished” the prosecution case. But it called into question the safety of Nealon’s conviction because it might reasonably have led the jury to reach a different verdict.
Hallam
Sam Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder in 2004. He served seven years and seven months before his convictions were quashed in 2012. There was new evidence casting doubt on some of the material that had formed part of the case against him.
The Court of Appeal said there was scope for mistaken identity and a real possibility that Hallam’s failed alibi was consistent with faulty recollection rather than a deliberate lie.
Compensation
Both men applied for compensation. By then, the law had been changed. Section 133 of the Criminal Justice Act 1988 now begins:
(1) …when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction… unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales… if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence…
Nealon and Hallam failed to satisfy the justice secretary that the newly discovered evidence showed beyond reasonable doubt that they did not commit the offences of which they had subsequently been cleared.
Nealon was told by the Ministry of Justice that the DNA from an unknown male found on the victim’s clothing might have had nothing to do with the attack on her. Hallam was told that the fresh evidence in his case did not establish positively that he was not at the murder scene.
Each man was refused compensation and both applied for judicial review. They argued that the statutory test for compensation was incompatible with article 6(2) of the human rights convention — which says “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law” — because it effectively required them to prove their innocence in order to receive compensation.
Their claims were dismissed by the High Court in 2015, by the Court of Appeal in 2016 and — on a majority of five to two — by the Supreme Court in 2019.
Strasbourg
Nealon and Hallam lodged an application at the human rights court later in 2019 and the arguments were considered by the court’s grand chamber at a hearing a year ago.
James Strachan KC, for the UK government, was invited to address the court first. He denied that the justice secretary had said or done anything to cast doubt on the reversal of their convictions. Having been cleared, Nealon and Hallam remained innocent.
But that did not mean they were entitled to compensation. The statutory scheme required a miscarriage of justice to be shown beyond reasonable doubt.
Strachan said:
There is a wide range of reasons why a criminal conviction may be reversed. Where that happens, the individual is entitled to benefit from the presumption of innocence, just as Mr Nealon and Mr Hallam do now, but that does not give rise to any general right to compensation, whether under the relevant international or domestic law.
There was no breach of the human rights convention, Strachan argued. The justice secretary was not assessing the innocence or guilt of the person who had been cleared on appeal.
Adam Straw KC, for Hallam, said there was no material difference between the words in the statute — “the person did not commit the offence” — and saying the person was “innocent”. So it was for the justice secretary to decide, on the basis of the evidence before the Court of Appeal, whether a person seeking compensation was innocent. And article 6(2) required such people to be treated consistently with their innocence.
Matthew Stanbury, for Nealon, argued that compensation was “inseparably linked” to the acquittal. He gave four reasons:
The right to compensation is contingent on the acquittal.
The justice secretary must focus on the facts and evidence that were considered by the Court of Appeal.
The justice secretary must analyse the Court of Appeal’s judgment and should not generally depart from its reasoning.
The justice secretary must re-evaluate the question of the applicant’s participation in the events leading to the criminal charge and decide whether the facts and evidence show that the applicant was innocent.
Discussion
Courts do not decide whether a defendant is innocent. As Lady Hale said in 2011:
Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt.
That was in the leading case of Adams, decided in 2011 by nine judges sitting in the Supreme Court.
Until 2012, there was no statutory definition of the term “miscarriage of justice”. The courts were left to interpret it. In the Adams case, the Supreme Court had adopted four categories, each wider than the one before, as a framework for discussion. They were:
cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which the defendant was convicted;
cases where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it;
cases where the fresh evidence renders 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
cases where something has 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.
A majority of the court held that “miscarriage of justice” covered (1) and (2). The minority said it included only (1).
Despite Hale’s observation, category (1) refers to cases where the defendant was “innocent”. Lord Judge, dissenting in Adams, used the phrase “truly innocent”. What does that mean?
Addressing the Strasbourg court last year, Strachan gave examples of people who had been cleared after pleading guilty. Video evidence had come to light proving that someone else had committed the crime.
In Adams, Judge gave an example of a case in category (4). In 1999, Nicholas Mullen was cleared of being an IRA quartermaster and freed from a 30-year sentence because his deportation from Zimbabwe had been in breach of the rule of law. But the law lords decided in 2004 that he was not entitled to compensation.
Comment
Just because a person is not convicted it doesn’t mean they didn’t do it. Many people commit offences for which they are not prosecuted. Some offenders are not charged or not convicted because there is insufficient evidence.
The compensation rules are tightly drawn. During the five years from 2017 to 2022, the human rights court was told last year, there were 346 applications for compensation. Only 13 were granted during that period.
We do not compensate people for time spent in prison awaiting a trial at which they are acquitted. We do not pay compensation to people who sentenced to prison and then cleared after an appeal brought in the normal way.
But is it lawful to confine compensation to cases where defendants are “truly innocent”, however that might be defined? Or does a failure to provide recompense leave the acquitted person with a stigma that offends the presumption of innocence in article 6(2)?
That’s what we expect to find out next Tuesday.
Update 11 June 1045: the claimants have lost. The court held by a majority of 12 votes to 5 that there had been no violation of article 6(2). The UK government has successfully defended its position.
There is a summary of the court’s ruling here. The full ruling is here.
In its summary, the court said:
The court noted that the test in section 133(1ZA) of the amended 1988 act required the justice secretary, in the context of a confidential civil and administrative procedure, to comment only on whether the new or newly discovered fact showed beyond reasonable doubt that the applicant had not committed the offence in question.
The refusal of compensation by the justice secretary did not, therefore, impute criminal guilt to the applicants by reflecting the opinion that they were guilty to the criminal standard of committing the criminal offences, nor did it suggest that the criminal proceedings should have been determined differently.
Finding that it could not be shown beyond reasonable doubt that an applicant had not committed an offence — by reference to a new or newly discovered fact or otherwise — was not tantamount to finding that he or she had committed the offence. Therefore, it could not be said that the refusal of compensation by the justice secretary attributed criminal guilt to the applicants.
Responding to the ruling, Nealon said:
For 17 years, I fought a case of which I am entirely innocent. Over 10 years later, I have not received any compensation from the government for the life I lost nor the mental agony inflicted on me from deaths of parents and loss of relationships.
This is not justice, and I am appalled by the decision of the court today.
For 20 years — the whole of my young adult life — I have been fighting a murder case of which I am entirely innocent. Still today I have not received a single penny for the seven-and-a-half years I spent in prison.
The brutal test for compensation introduced in 2014 needs to be abolished. It goes completely against what this country should stand for.
Fiona Rutherford, chief executive of the human rights group Justice, which intervened in the case, said:
Compensation can’t undo the harm caused by wrongful conviction, but it’s perverse that the current test set for those exonerated — and who might have spent many years imprisoned — is so high as to be almost impossible to meet.
Today’s judgment is disappointing. Scotland, Ireland and almost all countries signed up to the European Convention on Human Rights have schemes that enable miscarriage of justice victims to gain rightful recognition that they should never have been convicted.
It’s time the government urgently overhauled the compensation regime. Those wrongfully convicted and imprisoned should receive the recompense they are entitled to in a humane, fair and timely way.