A recent symposium organised by the human rights group JUSTICE considered the plight of the wrongfully convicted and the disgraceful way that the state is treating people who are, after all, victims of state error.
The issue is not simply about compensation. The lives of those who have wrongly served long prison sentences are invariably blighted by serious mental health problems; their families and loved ones have moved on or passed away; and they will often be unemployable. They will have to fend for themselves, poorly supported by a benefits system ill equipped to deal with their problems. They will live out what remains of their damaged lives in a world that has changed beyond recognition from the one they were removed from. They may never have had an email address or a mobile phone.
There will be no support from the state. The court does run a miscarriage of justice support unit from the courts – it is part of Citizens Advice with limited capacity to help and draws upon volunteer groups such as MOJO to support them through the dark days ahead.
There is no support or counselling services available to these people.
It is nothing short of a public scandal.
Compare how these vulnerable and damaged people are treated to the lot of a convicted offender released from custody: they have a dedicated probation officer, access to housing, a range of counselling and other services including mental health support.
The case of Victor Nealon remains a shocking illustration of what has gone wrong with our system. Readers may well recall how Victor was wrongfully convicted of attempted rape in 1997 before being released in December 2013.
Victor didn’t appear at the Court of Appeal but via video link from HMP Wakefield. After the hearing, he was left to clear his cell and was driven to and dumped at Leeds Railway Station. He was given a £46, to train ticket to Shrewsbury where he was supposed to meet a friend.
His friend had gone to meet him at the Royal Courts of Justice. No one told him about the video link.
Victor had no family to go to, no home, no job and zero support.
As luck would have it, a journalist arranged a bed for the night in a B&B (in return for an interview). He spent the days and weeks that followed living off the goodwill of others, including sleeping at a local MP’s office.
His story is not unique.
Victor is challenging the Ministry of Justice’s refusal to pay him compensation and it is a test case which will be heard by the Supreme Court.
‘The question of having a compensation scheme means it’s there to pay out,’ Victor told the Justice Gap last week. ‘We now have a situation where the state can imprison someone for decades in some cases and then to deny any form of redress is to my way of thinking bizarre.’
“It is my view that the court is protecting the lower court’s finding and by way of implication the secretary of state for justice,’ he says.
Victor quotes Martin Luther King:
‘Human progress is neither automatic nor inevitable… . Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.’
Victor continues: ‘I know that when the secretary of state for justice requires me to prove innocence beyond reasonable doubt it is nothing more than political expediency. He should heed the observation of Martin Luther King because he cannot prove beyond reasonable doubt that he has justice in mind as opposed to creating more victim.’
Victor’s case will be highlighted tomorrow on the ITV Documentary Series Judge Rinder Crime Stories at 2pm.
Victor Nealon is seeking redress for what has happened to him. Imagine if he was the innocent victim of a serious road accident or assault, no-one would question compensation to provide the support and care that he needed. Why is this any different?
At the time Victor originally applied for compensation, the Coalition government was pushing through an amendment to the Anti-Social and Behaviour Bill to introduce a new section to the 1988 Criminal Justice Act which provided the scheme for compensation.
Before the implementation of the 2014 Act last year, there was no statutory definition for a ‘miscarriage of justice’; however the courts had been applying an increasingly narrow test based upon the ability of an applicant to prove their innocence. This background to this is the ruling of the Supreme Court in R (Adams) v Secretary of State for Justice in 2011 where it was held that a miscarriage should be limited to those cases where a new or newly discovered fact ‘so undermines the evidence against the defendant that no conviction could possibly be based upon it’.
The law post Adams had cleared matters up and ensured people who simply had their convictions quashed ‘on a technicality’ could never be compensated. It provided however for both those who could prove innocence and those who could never prove innocence but the facts strongly suggested that they were innocent. This was for the obvious reason that it is almost impossible to prove a negative and, in any event, the Court of Appeal never declares an appellant innocent – the test is simply whether the conviction is safe or not.
The Government didn’t like this and suggested the law was confused (it was not) and introduced the new test: namely, that a person must now show ‘beyond a reasonable doubt that as a result of the newly discovered fact they did not commit the offence’.
The MoJ refused Victor’s claim: whilst they accepted that the evidence suggested someone else may have been responsible for the offence, he had not proved beyond reasonable doubt that he did not commit the offence. Their approach was effectively to go beyond the criminal standard of proof and to seek scientific proof.
As has been reported elsewhere on the Justice Gap, Victor’s case was joined to that of Sam Hallam.
We challenged the MoJ by judicial review and also argued that the 2014 law breached the presumption of innocence under the European Convention on Human Rights, article 6(2). This is the argument we hope that the Supreme Court will determine once and for all.
There was previous authority from the European Court in the case of Allen v United Kingdom  36 BHRC 1 which considered Adams and concluded that Article 6 (2) did apply to the test in Section 133 of the CJA 1988.
The MoJ threw everything at the challenge.
Back to the law
The requirement to have a scheme for compensation derives from the UK’s international obligations under International Covenant on Civil and Political Rights 1966, article 14 (6), ratified by the government in 1976.
This states that:
‘When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the known fact in time is wholly or partly attributed to him.’
The Grand Chamber in Strasbourg appeared to reach a contrary view in the case of Allen, although due to the wording of the test at that time it declined to make any award of compensation to Ms Allen. This presented the Court of Appeal with a conflict between an interpretation that section 133 does not offend Article 6(2) and the decision in Allen which suggests that it could and arguably would in its current formulation.
The court now concludes that following Adams, article 6(2) does not apply to section 133 and that Adams does remain binding authority regardless of Allen.
However, contrary to the government’s arguments, whilst the Court of Appeal considered the decision in Adams was binding authority it concluded that the decision in Allen was a very clear statement by the Grand Chamber that article 6 (2) did apply.
As the Court observed it was a carefully considered decision which was intended to be authoritative. As a result, the Government’s attempts to discount the decision in Allen based on some idea of a lack of clear and constant line of authority were dismissed by the Court of Appeal.
Lord Dyson, whilst indicating a preference for the majority view in Adams, makes clear that it is not for the domestic court to decline to follow the majority view in Allen.
As a result, the only argument for the court to then address was whether section 133 as now amended was incompatible with Article 6(2) which clearly applies. The Court concluded that, if the language of the decision-maker is such as to call into question the innocence of the claimant, then this will infringe article 6(2).
Lord Dyson notes:
‘I accept that, if section 133 required the secretary of state to voice doubts or suspicion on the innocence of the applicant, then it would be regarded as incompatible with article 6(2) according to the Strasbourg jurisprudence.’
With respect to his Lordship, this is exactly what the situation is.
For example, in the case of Victor Nealon, the secretary of state is stuck with accepting the consequences of the DNA pointing to someone else being responsible for the offence and – to seek to avoid this conclusion – he is left to argue that does not amount to 100% scientific proof.
He is casting doubt on the applicant’s innocence.
Further the court suggests that the new section does not require the applicant to prove his innocence generally. Again with respect to the Court of Appeal and the Divisional Court, this is nonsense.
If the newly-discovered fact tends to suggest innocence, the Secretary of State has to then grapple with its significance to the conviction as a whole – yet again it seems the court has failed to address this issue head on. It is a matter of common sense therefore that no assessment of innocence can ever take place in the vacuum of the newly-discovered fact.
The Secretary of State is using the new section to refuse all claims for compensation apart from the most wholly exceptional application and that was never the stated intention of Parliament.
The approach of our judiciary to this issue demonstrates how unchanged their thinking is to the issue of miscarriages in general. The court demonstrates this by relying on the words of Sir Thomas Bingham MR in R v Secretary of State for the Home Department expr Bateman [ 1994] 7 Admin LR 175:
‘He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest Mr. Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three and a half years when he should not have been convicted or imprisoned at all… . But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr. Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation.’
Anyone reading the judgment cannot help but reflect that the court has become totally out of touch from the real plight of the wrongfully convicted.
The Supreme Court will need to consider the cases of Victor Nealon and Sam Hallam. The court has shown its willingness to challenge plainly wrong actions by the Government (such as the legal aid residence test or the law of joint enterprise law) and this could be a defining moment.
Do we really want to compound the injustice that men such as Victor Nealon and Sam Hallam have already had to endure by offering no support on their release?
We can provide fair compensation without opening the floodgates to unworthy claims.
Victor’s case will feature in a new ITV Documentary Series Judge Rinder crime studies at 2pm Tuesday.
There are also proceedings against the Chief Constable of West Mercia Police in relation to the original investigation on the basis of misfeasance in public office, malicious prosecution and false imprisonment; plus a claim against the original solicitors who, we argue, could have proved Victor’s innocence had they conducted his defence adequately at the material time. Then there are the serial failings of our miscarriage of justice watchdog, the Criminal Cases Review Commission.
Perhaps the most scandalous aspect is the willingness of each one of these organisations to blame each other.
Why should Victor Nealon have to pursue these individual actions with the all the stress and anxiety such proceedings bring?
It is a reflection of the sort of justice system that we have. We put up barriers in the way of anyone who might be wrongfully convicted. We deny them access to evidence, the original trial exhibits, we destroy the court transcripts and use every opportunity to deny shut down the prospect of an appeal.
It took 23 painful years for the Hillsborough families to achieve some measure of truth and justice, for the most part the victims of miscarriages of justice have to fight each battle alone. Politicians of all colors talk sympathetically about introducing a victims’ law, so what about showing some compassion to the victims of wrongful convictions?
We should be ashamed of the present regime.
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.