When the Government enacted the amended Section 133 of the Criminal Justice Act 1988 (through the Anti-social Behaviour, Crime and Policing Act 2014), it did so on the basis that it was tidying up a situation which had become confused by a series of cases including the most recent heard by the Divisional Court in R (Ali) v SSJ  EWHC 72 (Admin).
However the legislation subsequently enacted has left the UK in a position where it is now arguably breaching Article 6 (2) of the European Convention on Human Rights and its obligations under Article 14 (2) of the International Convention on Civil and Political Rights (‘Everyone charged with a criminal offence shall have a right to be presumed innocent until proved guilty according to law’).
Article 14 (6) of the Convention had provided that anyone who had their conviction reversed on the basis of a newly discovered fact showing conclusively that there had been a miscarriage of justice should be compensated unless it could be proved that non-disclosure of the unknown fact in time was wholly or partly attributable to them .
Article 6 (2) protects the right to a fair trial and a number of European cases have confirmed that right to a fair trial extends to compensation.
The issues of course were raised in the case of Allen v United Kingdom [2013 ] ECHR 678 where despite attempts by the Government to break the link between trial fairness and the consequences after the trial process, the Grand Chamber rejected this confirming that in subsequent proceedings an applicant had to be treated fairly consistent with the presumption of innocence (i.e., in claims for compensation).
The difficulty that arose in Allen was that the facts of that case led the Court to ultimately conclude that there was ‘nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant’s guilt’.
This was clearly a decision before the new amended requirements and it is strongly arguable that the principle applied by the Grand Chamber in Allen is no longer sustainable. This is because the new test requires a person to show he did not commit the offence, not that he has suffered a miscarriage of justice.
As a result the Secretary of State is effectively being asked to now make a determination which directly impugns the innocence of the applicant.
What then is the answer to this according to the Secretary of State? In the context of the saga of my client Victor Nealon, it is is to place a final rider to the decision letter suggesting that nothing in the letter is intended to undermine Victor Nealon’s entitlement to be presumed to be innocent of the offence. A throw away sentence is an insufficient way of dealing with the consequences of miscarriage to applicants.
It is clear therefore that the new test requires the Secretary of State to carry out an act which directly infringes Article 6(2) and the ICCPR Convention.
In the Nealon case, the Secretary of State has gone as far as to concede that the Court of Appeal did conclude that the jury may well have decided that someone else was responsible for the offence and not Victor Nealon. Yet in order to construct a case to attack his entitlement to compensation, the Secretary of State has sought to return to pre-appeal expert theories from the Crown which were quickly dispensed with by the Court of Appeal and to suggest a disputed ID Parade might support the fact that there was a case to answer .
The Secretary of State is effectively seeking to do what he was criticised for in in the Ali case namely to go behind the Court of Appeal decision without any exceptional circumstances to do so .
The whole approach could be regarded as a tactic of ‘refuse to pay at all costs’ and reveals how perverse the discretionary scheme has now become. It is difficult to understand how any right thinking reader of the Nealon Case would wish to see him not compensated when the evidence, as it is conceded, is strongly supportive of the fact that someone else committed the offence.
The Nealon case shows exactly why the Government is now breaching its obligations, its perhaps to be expected that ministers will not agree (and as a result the issue will once again be back in the administrative Court later in the year). In the meantime it is likely that the Government will have achieved its aim of effectively closing down Miscarriage of Justice compensation for business.
Mark is a solicitor advocate and criminal law specialist with QualitySolicitors Jordans. He is an advisor to the Innocent Network UK and has overturned a number of high profile wrongful convictions - notably the cases of Ian Lawless and Anver Sheikh who overturned his conviction on his third appeal.