Update 13/4/17: The Supreme Court has granted Mr Nealon and Mr Hallam permission to appeal. The appeal will be listed in due course. 

The Divisional Court has rejected judicial review claims by Victor Nealon and Sam Hallam: [2015] EWHC 1565 (Admin). The men, who were wrongfully convicted and spent many years in prison, argued that the new scheme for compensating victims of miscarriages of justice offends the requirements of Article 6(2) of the European Convention on Human Rights: the presumption of innocence. To obtain compensation they were required to show that the new facts which led to their convictions being quashed proved their innocence. 

The issue has been controversial ever since Charles Clarke abolished the ex gratia payment scheme. The initial problem was identifying what was meant by the term “miscarriage of justice” in s.133 of the Criminal Justice Act 1988. It had been thought this was put to bed by the Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] 2 WLR 1180, in which the Court held (by a 5-4 decision) that a “miscarriage of justice” is where the evidence against the person was so undermined that no conviction could possibly be based upon it. It rejected the argument that the test was limited to cases where the new facts proved the person’s innocence.

In response, parliament introduced s.175 of the the Anti-Social Behaviour Crime & Policing Act 2014, so that the definition rejected by the Supreme Court became the legal standard for establishing a “miscarriage of justice”. In the Adams case, 3 of the 5 in the majority also held that Article 6(2) ECHR had no part to play. The justices in the minority agreed, although its reasons for doing so were different. Mr Nealon and Mr Hallam argued that the view of the justices on Article 6(2) did not bind the lower court, as the minority view resulted from a line of reasoning that was otherwise rejected by the majority (that s.133 required clear proof of innocence). It did not therefore form part of the ratio (rationale) of the decision.

The Divisional Court disagreed, and considered itself bound by  to reject the claims. The matter is complicated further by the fact that since the Supreme Court’s decision, the European Court of Human Rights (ECtHR) took a different view on the applicability of Article 6(2). In Allen v United Kingdom [2013] 36 BHRC 1, which concerned a decision under the old test, the Grand Chamber held that compensation decisions of this type were (at least in theory) justiciable under Article 6(2). Although it dismissed Ms Allen’s claim, it indicated that the outcome would likely have been different had Ms Allen been subjected to a “clear innocence” test.

In the spirit of the type of dialogue that sometimes gets lost in the argument on the Human Rights Act, the Divisional Court disagreed with the ECtHR. It held that, even if it was not bound by the Supreme Court’s decision, it would have rejected the ECtHR’s reasoning . It considered that the Supreme Court was right to find that compensation claims of this type are in a special category (“lex specialis”), and do not engage Article 6(2) (thus reminding us, once again, that the Supreme Court is the final arbiter of human rights in the UK, and that the Courts do not slavishly follow Strasbourg rulings). The Court endorsed remarks by Lord Phillips in Adams that the application of Article 6(2) in the present context is “one of the more remarkable examples of the fact that the Convention is a living instrument”. The riposte to which is, perhaps, that there is little surprising about the proposition that requiring a person to establish his innocence offends the presumption of innocence. The controversy lies in whether the compensation application is sufficiently linked to the criminal proceedings to invoke Article 6, which is concerned with the right to a fair trial. There is now a divergence of opinion between the UK courts and Strasbourg on that issue.

Fundamental to the Divisional Court’s reasoning was its acceptance of the Secretary of State’s submission that an applicant for compensation is not required to prove his innocence. That, it said, is because the test is whether the new fact establishes the person’s innocence, not whether in fact he is innocent. Although this was a distinction that Lord Phillips made in Adams, it was not one that the other justices had made, and the claimants submitted that it was not one of substance. Circumscribing the method by which innocence must be proved, they said, did not alter the fact that innocence must still be proved. Nevertheless, the Court found that there was a proper distinction to be made. Applying that reasoning, it held that the new test does not offend Article 6(2) ECHR.

The claimants have sought permission to appeal the decision, including on the grounds that the Supreme Court should have the opportunity to consider the effect of Allen v United Kingdom. Some, including Lord Hope, have suggested that the Justice Secretary Michael Gove needs to look at this issue again. In the meantime, those who have been wrongly convicted are likely, absent the very clearest proof of innocence, to go uncompensated by the state.