Two victims of grave miscarriages of justice who together spent close to quarter of a century in prison for crimes they didn’t commit have lost their case before the European Court of Human Rights after they were denied compensation.
The Strasbourg-based court ruled today that Sam Hallam and Victor Nealon had not had their rights breached, in particular their right to a presumption of innocence, by the UK’s decision not to provide compensation for the years they were wrongfully imprisoned. However, the judges acknowledged that the UK government had ducked its moral obligation to support the wrongly convicted and that the current system of compensation represented ‘a hurdle which is virtually insurmountable.’
Five judges of 17 judges dissented highlighting the fact that most European countries provide for compensation after a miscarriage of justice and that the UK had a ‘highly undesirable attitude towards the presumption of innocence’. The majority of the court recorded that it was ‘not insensible to the potentially devastating impact of a wrongful conviction’; but noted its role was not to determine how the UK should change its laws to reflect ‘the moral obligation they may owe to persons who have been wrongfully convicted’.
Hallam was jailed at 17 for over seven years for a murder he did not commit. He was released in 2012 and has spent more than a decade campaigning for justice.
Victor Nealon was mistakenly convicted of attempted rape. He spent 17 years in prison, a decade longer than his original tariff, because he continued to protest his innocence.
The case brought by the two men argued that the legal test for compensation after a miscarriage of justice, introduced in 2014, is overly restrictive and calls into question their innocence. Even after being acquitted of a crime, if the Justice Secretary considers that your innocence is not proved ‘beyond reasonable doubt’ they can deny you any compensation.
The two men argued through the appeal courts that once a conviction is overturned an individual should be presumed innocent. They said that requiring those who have been wrongly convicted to prove innocence beyond what was required by the criminal courts in order to achieve compensation reverses this fundamental principle of justice.
The 2014 change to the law places a near impossible burden on the applicant for compensation – so much so that only 7% of applications for compensation following a miscarriage of justice have been successful in the last eight years.
In response to today’s judgment, Mr Hallam said: ‘For twenty 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 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.’
Mark Newby, a member of Nealon’s legal team said: ‘After 17 years in prison simply giving someone a £46 travel warrant and dumping them at the train station cannot be right, the only humane approach is to compensate such persons for what they have lost without requiring them to jump through impossible hoops.’
The case centred on whether a Secretary of State’s decision not to offer compensation could ‘impugn criminal guilt’ by establishing a harsher test of innocence than that required by the appeal court to acquit them. The judges considered whether a decision to grant or deny compensation amounted to a suggestion that the criminal courts should have made a different decision.
The government said that they had simply drawn a ‘legitimate policy line’ to restrict who is eligible for compensation, stating: ‘It is simply wrong to suggest that there was a consequential connotation of guilt by the application of criteria restricting compensation.’
Lawyers for Hallam and Nealon argued that because of the ‘inseparable link’ between applicants’ acquittals and compensation applications, the 2014 law ‘degraded the meaning of the acquittals and called into question the applicants’ innocence.’
Although the men ultimately lost their case the judges were critical of the UK’s compensation regime. They noted that only 3% of individuals whose convictions have been overturned (and are therefore considered to be innocent) obtain compensation for a wrongful conviction. Between 2017 and 2022 out of 346 applications, only 13 were granted.
The judgement stated: ‘In other words, it is extremely rare for innocent people to succeed in persuading the Secretary of Justice that they have not committed the crime in respect of which their convictions have been quashed and are thus considered innocent.’
They acknowledged that this means the concerns raised by Sam Hallam and Victor Nealon ‘are not purely theoretical’. The impact of the UK’s restrictive law on compensation is plain to see, and has been drawn into sharp focus following public outcry at the lack of compensation paid out to victims of the Post Office Horizon scandal.
The court considered the law on miscarriages of justice in other European countries. Legal charity, JUSTICE, submitted evidence as a third party, noting that in Austria, Belgium, Norway and Spain they have removed tests requiring a demonstration of innocence in order to receive compensation following a wrongful conviction. With the 2014 law change, the UK took the opposite approach.
In Scotland and Northern Ireland compensation for miscarriages of justice also does not require proof of innocence – similar to that which existed in the UK prior to 2014.
JUSTICE also emphasised the wide-ranging negative impacts of wrongful conviction. Their submission said: ‘It could ruin a person’s life: he could lose his home, his job and his income, and it could place his relationships under immense strain. The public would think that he was guilty, a mark that would be hard to remove. Spending years in prison, knowing that he should not have been there, could cause serious psychological trauma.
When released, reintegrating back into society could be yet another challenge and without proper support many exonerees struggled to come to terms with freedom.’
They said compensation was ‘not a panacea’ but can be an important recognition of the harm the state has caused the wrongfully convicted.
In response to the judgment Mr Nealon said: ‘For seventeen years I fought a case of which I am entirely innocent. Over ten 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.’
Victor Nealon’s conviction for attempted rape was quashed at the Court of Appeal in 2013. He spent 17 years in prison. In May 2014 the Criminal Cases Review Commission apologised to Nealon for failing to investigate his case properly, including not commissioning DNA tests which could have cleared him ten years earlier. This case has disturbing echoes of that of Andy Malkinson, who has also not received a penny of compensation.
The teams representing Hallam and Nealon released a statement following the ruling in which they called upon the next government to ‘accept the moral obligation society owes to people who, through no fault of their own, have been subject to a miscarriage of justice.’
‘The public response to these cases, and to the Post Office or Horizon IT scandal, demonstrates the grave public concern reflected by the dissenting judges. The astonishing position is that victims of the Post Office scandal could have been denied compensation under the statutory scheme. Future governments must commit to changing the statutory scheme to make it fairer.’
Responses of Hallam and Nealon’s representatives to today’s ruling:
Marcia Willis Stewart KC (Hon), Partner of Birnberg Pierce: ‘Since the quashing of his conviction Sam Hallam has sought redress for years spent in custody, lost years. The passage of time has not diminished the need to right the wrong of those lost years of incarceration. Justice delayed is justice denied. Today the ECHR decision brings this litigation to an end. It cannot be right that in a just society there is no redress for years spent in custody. We will continue to bring pressure to bear on the government to amend the compensation scheme to enable Sam and others to obtain financial redress.’
Mark Newby, Partner, Jordans Solicitors LLP: ‘Today is a bitterly disappointing decision for our Client and all those who have been refused justice applying a skewed test for compensation. Notwithstanding the decision we call upon the new government to anxiously review the plight of our client together with the many other men and women who have suffered a miscarriage of justice ensuring they are given proper support applying a revised test that delivers fairness. After 17 years in prison simply giving someone a £46 travel warrant and dumping them at the train station cannot be right, the only humane approach is to compensate such persons for what they have lost without requiring them to jump through impossible hoops.’
Matt Foot, Co-Director, APPEAL: ‘The brutal compensation scheme for miscarriages of justice cases is the aspect of our criminal justice system of which I am most ashamed. We urgently need to find a mechanism to compensate those victims who have spent years in prison for crimes of which they are innocent, just as we need to compensate all the victims of the Post Office and infected blood scandals.’
Fiona Rutherford, Chief Executive of JUSTICE who intervened in the case: ‘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 ECHR, 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 overhaul the compensation regime. Those wrongfully convicted and imprisoned should receive the recompense they are entitled to, in an humane, fair and timely way.’
