R v Secretary of State for Justice

Facts

Sam Hallam's conviction for murder and Victor Nealon's conviction for attempted rape were each quashed by the Court of Appeal on the basis of new evidence. Each applied for compensation under s.133 of the Criminal Justice Act 1988. The Secretary of State refused, because the statutory definition of a miscarriage of justice inserted by s.175 of the Anti-social Behaviour, Crime and Policing Act 2014 requires that the new or newly discovered fact show beyond reasonable doubt that the person did not commit the offence, and in neither case did it.

History

The claims for judicial review, seeking a declaration of incompatibility under s.4 of the Human Rights Act 1998, were dismissed in the High Court and the Court of Appeal dismissed the appeals. The claimants appealed to the Supreme Court.

Issue

Whether s.133(1ZA), by restricting compensation to cases in which a new fact shows beyond reasonable doubt that the person did not commit the offence, is incompatible with the presumption of innocence in Article 6(2) ECHR, as interpreted by the European Court of Human Rights in Allen v United Kingdom (2013).

Held

Appeals dismissed. No declaration of incompatibility was made.

Ratio

• Section 133(1ZA) does not infringe Article 6(2): refusing compensation because a new fact does not establish innocence beyond reasonable doubt does not involve any assertion that the applicant is guilty or any questioning of the acquittal, so the presumption of innocence in its second aspect is not engaged in a way that the statute violates.

The judgments

Key reasoning

• Article 6(2) has two aspects: a procedural guarantee in the criminal trial and a protection against later statements by public authorities that suggest an acquitted person is guilty.
• The s.133 test turns on whether a new fact positively establishes innocence; failing that test is consistent with the person being innocent and does not amount to a finding that he committed the offence.
• Under s.2 of the Human Rights Act 1998 domestic courts must take Strasbourg case law into account but are not bound by it, and the majority was not persuaded there was a clear and constant line requiring a different result.

Where it fits in the module

In the HRA topic the case illustrates the operation of s.2 and the limits of the mirror principle, as the Justices divided over how closely to follow Strasbourg. It also shows the declaration of incompatibility under s.4 as the sole remedy against primary legislation, and the deference courts give to Parliament's definition of entitlement to a statutory benefit.

Criticisms

• Requiring proof of innocence beyond reasonable doubt means that many people whose convictions are quashed, including some who are in fact innocent, will never be compensated, which arguably undermines the practical force of their acquittal.
• The distinction between not proving innocence and imputing guilt can be seen as formalistic, since the refusal communicates that the person might have committed the offence.
• The willingness of some Justices to decline to follow Strasbourg raises questions about the stability of the s.2 relationship, though the later Strasbourg ruling in favour of the United Kingdom lends the majority support.