This morning the High Court rejected challenges by Victor Nealon and Sam Hallam in their miscarriage of justice test case for compensation for 24 lost years served in prison before having their convictions quashed.
- Victor Nealon spent 17 years in prison for attempted rape before his conviction was quashed on the basis of a DNA. His conviction was quashed in December 2013 after DNA pointed to another man as the attack. You can read an interview with Nealon by Jon Robins here
- Sam Hallam was jailed in 2005 for life with a minimum term of 12 years in connection with the murder of Essayas Kassahun in 2004. In May 2012, appeal judges decided the conviction was unsafe. You can read an interview with Hallam here
‘The most damaging aspect of the prison system isn’t being with violent people but the state ideology that says if you don’t conform you are never going to be released. That was what was so damaging. If I had not overturned my conviction I would still be classified as “a denier”.’
‘There has to be some recognition of what happened. Everyone just shrugged their shoulders and said, “Well, you’re out now. You should just be happy.”‘
Sam Hallam’s girlfriend Renee
‘This is a sad day for justice and the presumption of innocence. We hope the Court of Appeal will overturn this judgement. Sam Hallam’s wrongful conviction was examined in meticulous detail by the CCRC in a three year inquiry, and Thames Valley Police in a fifteen month investigation. Not a shred of evidence was uncovered to place him at the murder scene, while no less than 37 witnesses were identified at the scene, none of whom saw Sam Hallam. The callous refusal of the Ministry of Justice to compensate this innocent man is truly shameful.’
Paul May, chair of the Sam Hallam campaign
‘Today is not a good day for justice’
Mark Newby, Victor Nealon’s solicitor
In rejecting the claims, the Divisional Court (Burnett LJ and Thirwall J) accepted (at para 45) the previous Strasbourg judgement in Allen v United Kingdom which allowed for arguing that the words of the new compensation test (Section 133 (1ZA)) offended the presumption of innocence. You can download the judgment here.
‘The Strasbourg Court has long interpreted article 6 (2) in a way which takes its meaning well beyond its natural language and the original intention underlying it.’
The claimants find themselves now parachuted into the ongoing conflict between our domestic courts and the European Court. That’s a dispute which ultimately is only likely to be sorted out by the Supreme Court or European Court.
The essence of the challenge is that the new miscarriage compensation test, as formulated by the Coalition Government, is that someone claiming compensation has to show beyond reasonable doubt that as a result of the newly discovered fact they did not commit the offence.
In other words, a claimant will have to demonstrate their innocence. The Secretary of State for Justice, Chris Grayling disagreed (saying that the test required “only” that the new facts that led the conviction being quashed established the person’s innocence).
Frankly, that is not a difference of substance.
Grayling’s response to the charge that such a high threshold for the test effectively impugns the reputation of applicants it to include a statement at the foot of every refusal letter saying that the decision does not question the Claimants innocence.
What does the court now say about this?
’49. The language demonstrates, in my view, that Section 133 does not require the applicant for compensation to prove his innocence. It is the link between the new fact and the applicant’s innocence of which the Secretary of State must be satisfied before he is required to pay compensation under the 1988 Act, not his innocence in a wider sense. I do not consider there is any practical distinction between “innocence” and “did not commit the offence “for these purposes.’
That is about as clear as mud.
The court goes on to say:
‘Similarly, there have been examples of cases with new DNA analysis which has shown beyond reasonable doubt that the convicted person could not have committed the crime in question.’
This is exactly the point of the Nealon case – the Court of Appeal concluded that as a result of new DNA relating to an unknown male (and not Victor Nealon) that the jury was likely to have concluded that it was the unknown male that was responsible for the crime.
Indeed, the court accepted that the assessment did not require scientific proof (by the way, counsel for Victor Nealon demonstrated how a proper assessment would have shown that there was evidence that he didn’t the offence anyway). Disappointingly, the Court has failed to tackle these issues. Our view is that the Court made the mistake of upholding a wholly inadequate assessment by the Ministry of Justice. The Court of Appeal’s decision could only be the starting point of an assessment for compensation, not the end point.
If ultimately this seems confusing, this is as nothing compared to the key issue of the presumption of innocence which led to an unduly complex assessment of the Adams case – much was made of the differing speeches in that case and whether ‘a minority of the majority or majority of the minority’ (depending on your view) reached any conclusion over the applicability of Article 6(2).
Ultimately the court has now indicated that whatever differing Justices of the Supreme Court meant (or thought they meant) they believe themselves to be bound by Adams.
It is even more disappointing that the court declined to agree to a leapfrog appeal to the Supreme Court. In the meantime the new Secretary of State for Justice will no doubt be using this judgment to turn down more worthy and long suffering claimants.
Our view is that the court has unfortunately fallen into error in this case. The test does breach the presumption of innocence. It is a test in which the proof of innocence is a necessary criterion for eligibility. Even if we are wrong, the proper course wiould be for the case to go before the Supreme Court so clarity can be achieved.
Finally, in the case of Victor Nealon the court simply was wrong on how it approached the assessment which the secretary of state for justice was required to undertake. Chris Grayling failed to address the expert evidence and the material which clearly demonstrated that Victor Nealon did not commit the offence.
These are issues which cannot be left unchallenged – and as a result the case will be appealed.
Not everyone should of course be compensated, but those who as a result of a newly discovered fact can demonstrate that they have suffered a miscarriage of justice should be. That is what the court in Adams intended, in line with a proper interpretation of the UK’s international obligations, under the International Protocol on Civil and Political Rights.
It cannot have been anyone’s intention to make a man who served 17 years to then have to prove his innocence. Today is not a good day for justice, and it certainly doesn’t demonstrate the sort of ‘big society’ right-thinking members of the public would want to see .
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.