R (on the application of Nealon) (Appellant) v Secretary of State for Justice (Respondent)

Hilary Term

[2019] UKSC 2

On appeal from: [2016] EWCA Civ 355

R (on the application of Hallam) (Appellant) v Secretary of State for Justice (Respondent) R (on the application of Nealon) (Appellant) v Secretary of State for Justice (Respondent)

before

Lady Hale, President

JUDGMENT GIVEN ON

30 January 2019

Heard on 8 and 9 May 2018

Appellant	Respondent
(Hallam)

Adam Straw

Mathew Gullick

Peirce)

Government Legal

Department)

Appellant

(Nealon)

Dinah Rose QC

Matthew Stanbury

(Instructed by Quality

Solicitors Jordans)

Intervener (JUSTICE)

Henry Blaxland QC

Jodie Blackstock

(Instructed by White &

Case LLP)

LORD MANCE:

1. These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. The provisions are contained in section 133 of the Criminal Justice Act

1988 (“the 1988 Act”) as amended by section 175 of the Anti-social Behaviour,

Crime and Policing Act 2014 (“the 2014 Act”). The central issue is whether they are

compatible with the presumption of innocence as guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental

Freedoms (1953) (Cmd 8969) (“the Convention”).

The factual background

(1) Mr Hallam’s case

2. Mr Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder, following a gang fight in which another young man was killed. The case against him at his trial rested on identification evidence provided by two witnesses. The weaknesses in their evidence were such that independent supporting evidence was, in practice, essential. The only support was evidence from a Mr Harrington, denying that he had seen Mr Hallam either on the day of the murder or on the days surrounding it. That evidence was said to suggest that Mr Hallam had concocted a false alibi, since he had stated that he was with Mr Harrington at the time of the murder.

3.         Several years after the trial, the case was referred to the Court of Appeal

Criminal Division (“the CACD”) by the Criminal Cases Review Commission on the

basis that fresh evidence had been discovered. That evidence included photographs

found on Mr Hallam’s mobile phone, showing him with Mr Harrington on the day

after the murder. The phone had been seized from Mr Hallam at the time of his arrest but had not been examined. Hallett LJ, giving the judgment of the CACD, observed

that this evidence changed the situation dramatically, in that “the evidence relied

upon by the prosecution to support the identifying witnesses, namely the evidence

as to false alibi”, had been “significantly undermined” ([2012] EWCA Crim 1158,

para 75). She went on (para 76):

“… we are now satisfied that any confidence that the appellant

had lied and/or asked Harrington to concoct a false alibi was

misplaced.”

4.         Summarising the position (in para 77), the court noted that neither identifying

witness had been “particularly satisfactory”, with their “various accounts

[containing] numerous inconsistencies and contradictions”; and that there was other

fresh evidence comprising information provided to the police by a witness named Gary Rees, which had not been disclosed to the defence at the time of the trial, to the effect that another man with the same first name as Mr Hallam was rumoured to be responsible for the murder. The CACD stated (para 77):

“The new information in relation to the messages from Gary

Rees raises the possibility of greater collusion (in the sense of discussion) between the [identification] witnesses than the defence team knew at the time. It also potentially puts paid to

[one of those witnesses’] assertion that from the outset there

were rumours that Sam Hallam was involved.”

Returning to the alibi, the court noted (para 78) that:

“We now know there is a real possibility that the appellant’s

failed alibi was consistent with faulty recollection and a dysfunctional lifestyle, and that it was not a deliberate lie. The

proper support for the Crown’s case has fallen away.”

1. The CACD also held (para 79) that, given the terms of the judge’s direction,

there was a possibility that the jury might not have realised that it was entitled to treat the evidence of another witness as potentially exculpatory of Hallam. In paras 80 and 83 it stated the conclusion that it drew from all the factors as follows:

“80.	In our judgment, the cumulative effect of these factors

is enough to undermine the safety of these convictions. …

83.       Accordingly, the result is that the conviction is unsafe

and it must be quashed.”

6. Earlier in its judgment, the CACD recorded at para 49 that counsel appearing for Mr Hallam had invited it to state that he was innocent of the offences. The court cited a passage in the judgment of Lord Judge CJ in R (Adams) v Secretary of State for Justice (JUSTICE intervening) [2011] UKSC 18; [2012] 1 AC 48, para 251, as

setting out what Hallett LJ described as “the court’s powers in this respect”. The

court declined to make such a statement, observing that “we were not satisfied it

would be appropriate to use that power on the facts of this case”.

7. Mr Hallam spent seven years and seven months in prison prior to the quashing of his conviction. He applied for compensation under section 133 as amended. By letter dated 14 August 2014 the Secretary of State refused the application. The letter began by explaining the statutory test:

“Following the coming into force of section 175 of the Anti-

social Behaviour, Crime and Policing Act 2014, compensation

under section 133 of the Act is only payable where a person’s

conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person

did not commit the offence.”

The letter continued:

“… the Secretary of State does not consider that the new

evidence before the court shows beyond reasonable doubt that

Mr Hallam did not commit the offence.”

The Secretary of State explained:

“The CA [Court of Appeal] view was that the cumulative effect

of [the fresh evidence] was enough to undermine the safety of

your client’s convictions which were quashed on that basis.

However, the fresh evidence does not establish positively that

your client was not at the murder scene …

We further note in this regard that, whilst the Court of Appeal

quashed Mr Hallam’s convictions on the basis that they were

unsafe, it expressly declined the invitation of Mr Hallam’s

counsel to exercise its discretionary power (as identified by Lord Judge in Adams [2011] UKSC 18) to state that the new

evidence demonstrated ‘the factual innocence of the

appellant’.”

8. Two factors were therefore of particular importance: first, that as the CACD had found, the fresh evidence did not establish positively that Mr Hallam was not at the murder scene on the night in question, and secondly, that the CACD had declined

to exercise what was described as “its discretionary power” to state that Mr Hallam

was factually innocent. The letter concluded:

“It is important to emphasise that nothing in this letter is

intended to undermine, qualify or cast doubt on the decision of

the [Court of Appeal] to quash your client’s convictions. Mr

Hallam is presumed to be and remains innocent of the charges. His application has been rejected as it does not meet the statutory test for compensation under section 133 of the 1988

Act.”

9. Mr Nealon was convicted of an attempted rape committed in August 1996. There was identification and description evidence from several witnesses which if accepted placed him in a club where the victim had previously been on the night of the offence, and near the scene of the attack. He denied that he had ever been to the club and gave evidence of an alibi. The victim gave evidence that the man who

attacked her “mauled” her, tried to kiss her and put his hand inside her blouse over

her bra. He was pulling at her tights and underwear. No DNA examination of her
clothing was then carried out.

10. The case was subsequently referred to the CACD by the Criminal Cases Review Commission on the basis of evidence of DNA found on an examination of her clothing carried out in 2010, nearly 14 years after the offence. A sample taken from the front of her blouse revealed a full male DNA profile from what was probably a saliva stain. It was not from Mr Nealon, but had been deposited by a man

who was designated as the “unknown male”. Further probable saliva stains were

detected on both cups of her bra. They too had not been deposited by Mr Nealon, but were consistent with the DNA of the unknown male. An examination of her skirt and tights disclosed a complex mixture of DNA, including DNA from an unknown woman, and was inconclusive. Evidence was adduced on behalf of the Crown that

the attacker might not have transferred any DNA to the victim’s clothing.

11. The victim was re-interviewed in connection with the new investigation. She said that she had bought the blouse and bra either on the day of the attack or a day or two before. This was the first time she had worn either garment in public. She had been in a relationship with a male partner at the time, and could not recall any consensual contact with any other man since she bought the blouse and bra. DNA tests excluded the possibility that her partner, any of the officers involved in the investigation, any of the men who arrived at the scene of the attack shortly after it occurred, or any of the scientists involved in the original investigation, was the unknown male. It was argued by the Crown that the DNA might have been deposited on the blouse and bra at the time of their purchase or as a result of re-distribution from other items, and might have nothing to do with the attack, particularly in the

light of the victim’s evidence that she had hugged and kissed other men on that date,

when she was celebrating her birthday.

12. The CACD (Fulford LJ, Kenneth Parker J and Sir David Calvert-Smith) concluded that the effect of the fresh evidence was to render the conviction unsafe, and that it should therefore be quashed: [2014] EWCA Crim 574. The central reasoning of the court is found in para 35 of the judgment delivered by Fulford LJ:

“… the fresh evidence has not ‘demolished’ the prosecution

case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was

a real possibility that DNA from a single ‘unknown male’ had

been found in some of the key places where the attacker had

‘mauled’ the victim (in particular, the probable saliva stain on

the lower right front of Ms E’s blouse and probable saliva stains

on the right and left cups of Ms E’s brassiere as well as other

DNA material …) this could well have led to the appellant’s

acquittal.”

No application was made for a retrial.

13. Mr Nealon spent 17 years in prison prior to the quashing of his conviction. He applied for compensation under section 133 as amended. By letter dated 12 June 2014 the Secretary of State refused the application. After explaining the statutory test in the same terms as the letter sent to Mr Hallam, the letter continued:

“Although the new evidence shows that the DNA was from an

‘unknown male’, this does not mean that it undoubtedly

belonged to the attacker. Expert evidence for the prosecution at the appeal stated it was plausible that the attacker transferred

little or no DNA to the victim’s clothing during the commission

of the offence, and that the DNA from the unknown male may not have been crime related. The Court of Appeal said that

these arguments required ‘serious consideration’. It also found

that the original jury had been entitled to convict your client on the basis of the existing identification evidence (which was not at issue in the appeal). Whilst the Court of Appeal decided,

ultimately, that the jury ‘may reasonably have reached the

conclusion, based on the DNA evidence, that it was a real

possibility that the ‘unknown male’ - and not the applicant -

was the attacker’, the court was explicit that the fresh evidence

did not ‘demolish’ the prosecution evidence.”

1. In Mr Nealon’s case, as in Mr Hallam’s, the decision letter focused on the

reasoning of the CACD: that it said that the argument that the DNA material might not have been crime-related required serious consideration, that it found that the original jury had been entitled to convict on the basis of the existing identification evidence, and that it said that the fresh evidence did not demolish the prosecution evidence. On that basis, the Secretary of State stated:

“Having considered the judgment in the Court of Appeal, and

your client’s own submission, the Justice Secretary is not

satisfied that your client’s conviction was quashed on the

ground that a new or newly discovered fact shows beyond

reasonable doubt that your client did not commit the offence.”

The letter concluded in similar terms to that sent to Mr Hallam:

“Finally, it is important to emphasise that nothing in this letter

is intended to undermine, qualify or cast doubt upon the

decision to quash your client’s conviction. You client (sic) is

presumed to be and remains innocent of the charge brought against him. His application has been rejected because his case

does not in the Justice Secretary’s view meet the statutory test

for compensation under section 133 of the Criminal Justice Act

1988.”

The statutory provisions

15.       Section 133(1) of the 1988 Act provides:

“(1) Subject to subsection (2) below, when a person has 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 beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person

convicted.”

Section 133(2) requires an application for compensation under the section to be

made within two years of the date on which the person’s conviction is reversed or

he is pardoned. Section 133(3) provides:

“(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of

State.”

Under section 133(5), the term “reversed” is to be construed as referring to a

conviction having been quashed, inter alia, on an appeal out of time, or following a
reference to the CACD by the Criminal Cases Review Commission.

1. Section 133 was enacted to give effect to the United Kingdom’s international

obligations under article 14(6) of the International Covenant on Civil and Political

Rights 1966 (“the ICCPR”), ratified by the United Kingdom in 1976. Article 14(6),

in its English version, provides:

“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 unknown fact in time is wholly or partly attributable to

him.”

There is a very similar provision in article 3 of Protocol No 7 to the Convention

(“A3P7”), which the United Kingdom has not ratified.

1. Section 133(1) restricts compensation to cases where a person’s conviction

has been reversed (or he has been pardoned: for the sake of brevity, I will focus from

this point onwards on cases where convictions are reversed) “on the ground that a

new or newly discovered fact shows beyond reasonable doubt that there has been a
miscarriage of justice”. Convictions are not quashed in England and Wales on the

ground that there has been a miscarriage of justice, but on the ground that they are unsafe: see further paras 25 et seq below. It was said in Adams, para 36, that the

words “on the ground that” must, if they are to make sense, be read as “in circumstances where”, and that the Secretary of State must therefore determine

whether a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. In deciding that question, the Secretary of State would have regard to the judgment of the CACD, but ultimately had to form his own conclusion.

1. The term “miscarriage of justice” was not defined when section 133 was

originally enacted. This resulted in a series of cases in which the courts sought to interpret the term, culminating in the decision of this court in Adams delivered on 11 May 2011. In that case, the court adopted four categories of case, of progressively wider scope, as a framework for discussion. They were:

1) cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which he was convicted;

2) cases where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it;

3) cases where the fresh evidence renders the conviction unsafe in that,

had it been available at the time of the trial, a reasonable jury might or might
not have convicted the defendant; and

4) cases where something has gone seriously wrong in the investigation

of the offence or the conduct of the trial, resulting in the conviction of
someone who should not have been convicted.

By a majority, the court held that the term “miscarriage of justice” covered all cases

falling within category (2). It therefore included, but was not limited to, cases falling within category (1). The minority view was that the term was confined to category (1) cases.

19. Section 133 was then amended, with effect from 13 March 2014, by section 175 of the 2014 Act, so as to confine the term “miscarriage of justice” to category

(1) cases. Section 133(1) remained unaltered: it continued to be necessary for the

conviction to be reversed “on the ground that a new or newly discovered fact shows

beyond reasonable doubt that there has been a miscarriage of justice”. However,

section 175 of the 2014 Act inserted section 133(1ZA) into the 1988 Act, providing

a statutory definition of the term “miscarriage of justice”:

“(1ZA) For the purposes of subsection (1), there has been a

miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be

construed accordingly).”

The words “did not commit the offence” can be read as synonymous in this context

with the words “is innocent” used by this court in category (1) in Adams. The effect

of section 133(1ZA) is therefore that there is a miscarriage of justice, for the purposes of section 133(1), only where the new or newly discovered fact shows beyond reasonable doubt that the case falls into category (1) recognised in Adams.

20. As stated already however (para 17 above, and see paras 25 et seq below), the ground on which a conviction is quashed by the CACD is that it is unsafe. Section 133 has therefore to be understood as requiring compensation to be paid only where the Secretary of State determines that the CACD quashed the conviction in circumstances where fresh evidence shows beyond reasonable doubt that the person did not commit the offence.

1. It was under section 133 as so amended that Mr Hallam’s and Mr Nealon’s

applications for compensation were considered and refused by the Secretary of

State.

The present proceedings

22. Mr Hallam and Mr Nealon contend that section 133(1ZA) is incompatible with article 6(2) of the Convention, which provides:

“Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.”

They seek a declaration of incompatibility under section 4 of the Human Rights Act 1998. Their applications were rejected by the Divisional Court, comprising Burnett LJ and Thirlwall J: [2015] EWHC 1565 (Admin). The Divisional Court held that it was bound by Adams, and by the decision of the Court of Appeal in R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R 2, to hold that article 6(2) had no application to section 133, notwithstanding the more recent decision to the contrary by the Grand Chamber of the European Court of Human Rights in Allen v United Kingdom (2013) 63 EHRR 10. It further held that section 133 was in any event compatible with article 6(2), taking the view that the requirement that the Secretary of State be satisfied that the new or newly discovered fact showed beyond reasonable doubt that the person did not commit the offence could be distinguished from a requirement that the Secretary

of State be satisfied of the person’s innocence in a wider or general sense.

23. On appeal, the Court of Appeal (Lord Dyson MR, Sir Brian Leveson P and Hamblen LJ) considered that it was bound by the decision in Adams to hold that article 6(2) was not applicable to section 133: [2016] EWCA Civ 355; [2017] QB 571. On the other hand, it also considered that the line of Strasbourg jurisprudence including and following the judgment in Allen v United Kingdom (2013) 63 EHRR 10 was so clear and constant that, if not bound by Adams, it would have followed it. The court also agreed with the Divisional Court, for the reasons which it had given, that section 133 was in any event compatible with article 6(2).

The issues arising

24.       The central issue on this appeal can be split into two broad questions:

1) The first concerns the scope under English law of article 6(2) scheduled to the Human Rights Act 1998: in particular whether and how far it applies at all to decisions on, or the criteria for, the award of compensation under section 133 of the Criminal Justice Act 1988; this question requires us to consider inter alia whether this court should depart from its decision in Adams.

2) The second question, arising if and so far as article 6(2) is applicable in respect to such decisions or criteria, is whether the definition of

“miscarriage of justice” in section 133(1ZA), introduced by section 175 of

the Anti-Social Behaviour, Crime and Policing Act 2014 is incompatible with article 6(2).

Innocence in criminal proceedings

25. Before addressing these questions directly, it is appropriate to discuss an underlying question, namely the place of innocence in criminal proceedings.

26. In English law, as in many other legal systems, it is not the function of

criminal proceedings to determine innocence. As Lady Hale stated in Adams, para
116:

“Innocence as such is not a concept known to our criminal

justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt

beyond reasonable doubt.”

27. It is equally not the function of the CACD on an appeal (or on a reference by the Criminal Cases Review Commission, which is by statute treated as an appeal) to determine whether the appellant did or did not commit the offence. The question for the CACD is whether the conviction is unsafe. Section 2(1) of the Criminal Appeal

Act 1968 provides that the CACD shall allow an appeal “if they think that the conviction is unsafe”. The court is then required by section 2(2) to quash the

conviction. Section 2(3) provides that an order quashing a conviction shall, except

where a retrial is ordered “operate as a direction to the court of trial to enter, instead

of the record of conviction, a judgment and verdict of acquittal”. A successful

appellant is therefore “in the same position for all purposes as if he had actually been

acquitted”: R v Barron [1914] 2 KB 570, 574.

28. That it is not the function of the CACD to make findings of innocence was emphasised by Lord Phillips in Adams. In his judgment, he expressed agreement with the position as put in the Canadian case of R v Mullins-Johnson (2007) 87 OR (3d) 425, where the Court of Appeal of Ontario said:

“23. There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer

Commission of Inquiry Pertaining to the Cases of: Ronald

Dalton, Gregory Parsons, Randy Druken, Annex 3, p 341: [A]

criminal trial does not address ‘factual innocence’. The

criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law.

24. Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under section 696.3(3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing

this case ‘as if it were an appeal’. While we are entitled to

express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the

appellant’s factual innocence.

25. In addition to the jurisdictional issue, there are important policy reasons for not, in effect, recognising a third verdict,

other than ‘guilty’ or ‘not guilty’, of ‘factually innocent’. The

most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects

of the Trial and Conviction of James Driskell, ‘there is a

genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not

guilty verdict’: see p 39. To recognise a third verdict in the

criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high

standard of proof beyond a reasonable doubt.”

29.       Lord Hope and Lord Kerr spoke to similar effect in paras 95 and 172, while

acknowledging that the CACD may in practice occasionally “observe that the effect

of the material considered in the course of the appeal is demonstrative of innocence”,

or make an observation to like effect: see per Lord Kerr, para 172.

1. Lord Judge, in a dissenting judgment, agreed (para 250) that innocence is “a

concept to which the criminal process is not directed”. Hence, he also accepted, the

word “‘innocent’ could have no place in section 133”. But he went on in para 251

to say that a CACD was entitled to state that a defendant was innocent and that, if the evidence unmistakeably demonstrated that the appellant was in truth innocent

“the terms of the judgment should conscientiously reflect the true reasons for its

decision that the conviction should indeed be quashed as ‘unsafe’”.

1. In relation to Mr Hallam, the CACD spoke of that passage in Lord Judge’s

judgment as setting out “the court’s powers”, and decided that it would not be

appropriate “to use that power” in Mr Hallam’s case (see para 5 above). The

Secretary of State referred to these statements in his own remarks (para 6 above).

32. It should be made clear that the CACD does not possess any power to make formal findings or declarations of innocence. Nothing in the Lord Chief Justice’s judgment in Adams suggested that it did. It is not the CACD’s role to determine

whether the appellant is factually innocent. The question which it determines is whether the conviction is unsafe. When giving its decision on that question, the court will necessarily explain the reasons for its decision. What it is appropriate to say in that regard will depend to a large extent on the circumstances of the case. In practice, it is often necessary to carry out an assessment of the strength of the evidence as a whole, both inculpatory and exculpatory. If the court considers that the evidence plainly exonerates the appellant, then it is entitled to say so when giving its reasons for allowing the appeal. Sometimes the Crown will have accepted that this is so, and in that event the judgment will normally record that stance. In other cases the significance of the fresh evidence is contested, and in that event the court generally confines itself to the issue of safety.

33. It follows that, although there are some cases in which the court may state in its judgment that the appellant has been exonerated, it is not the purpose of the appeal proceedings to determine whether that is the position, and in the great majority of cases the court does not enter into the fact-finding exercise which would be necessary before such a statement might be made. The absence of any statement that the appellant has been exonerated does not therefore carry any implication

concerning the appellant’s innocence.

34. It is, therefore, highly undesirable that whether the CACD should say that the appellant is innocent of the crime of which he was convicted should become an issue

in an appeal, as it became in Mr Hallam’s case. This is not only because the issue

does not properly arise. As the Canadian court explained in the case of Mullins- Johnson, it is also important that the significance of acquittals should not be degraded by the introduction of a practice of distinguishing in a criminal context between those who are factually innocent and those who merely benefit from the legal presumption of innocence: a distinction which section 133, in its amended form, can have the understandable but unfortunate effect of encouraging successful appellants to ask the CACD to draw. Cases in which the CACD expresses the view that an appellant was innocent should remain, as Lord Bingham and others have

said, very rare. No adverse inference should be drawn from the court’s unwillingness

to express such a view. The application of section 133 is for the Secretary of State,

not for the CACD quashing the conviction.

The scope of article 6(2)?

1. Article 6 is headed “right to a fair trial” and article 6(2) reads:

   “Everyone charged with a criminal offence shall be presumed

   innocent until proved guilty according to law.”

In construing article 6(2), we must under section 2(1)(a) of the Human Rights Act

“take into account” any relevant case law of the European Court of Human Rights

(“ECtHR”). This sharpens what would anyway be our natural approach when

construing provisions designed to incorporate domestically the provisions of a Convention binding on the United Kingdom internationally in senses fixed internationally by the decisions of a supra-national court. But on any ordinary reading, whether by reference to the principles in the Vienna Convention on the Law of Treaties 1969 (Cmnd 4140) or domestic principles, article 6(2) is limited to the pre-trial phases of any criminal accusation or proceedings. What constitutes a criminal charge or proceeding has, not surprisingly, been given an autonomous meaning by the ECtHR, so as to include for example military disciplinary or administrative motor traffic violations: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 80-81 and Özturk v Germany (1983) 6 EHRR 409, paras 46-54. But once any criminal charge or proceeding, read in that sense, has terminated in acquittal or discontinuance, there is, as Lord Wilson points out (para 86(c)), no basis for any mere presumption of innocence.

36.       The European Court of Human Rights (the “ECtHR”) has however taken the

view that article 6(2) has a continuing relevance after acquittal or discontinuance. In

this connection, it recently stated as its starting point these propositions:

“Without protection to ensure respect for the acquittal or the

discontinuation decision in any other proceedings, the fair-trial guarantees of article 6(2) could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings

have concluded is the person’s reputation and the way in which

that person is perceived by the public.”

See Allen v United Kingdom (2013) 63 EHRR 10, para 94.

37. Nevertheless, analysing the Strasbourg case law up to 2011 in the course of giving the majority judgment in Serious Organised Crime Agency v Gale [2011] UKSC 49; [2011] 1 WLR 2760 on 26 October 2011, Lord Phillips was inclined to the view that

“all that the cases establish is that article 6(2) prohibits a public

authority from suggesting that an acquitted defendant should have been convicted on the application of the criminal standard of proof and that to infringe article 6(2) in this way entitles an applicant to compensation for damage to reputation or injury to

feelings.”

He was of this view, although, he noted, “it involves a remarkable extension of a

provision that on the face of it is concerned with the fairness of the criminal trial”:

Gale, para 34, and see also para 58 of his judgment in Adams delivered earlier in
2011.

38. The ECtHR, without referring to the discussion in Gale, indicated in Allen v United Kingdom on 12 July 2013 that it does not view article 6(2) in so clear cut or limited a sense as Lord Phillips suggested. First, it has developed, as an initial test

of the application of article 6(2), the theory of a “link” between, on the one hand, an

acquittal or discontinuation of criminal proceedings and, on the other, certain other types of proceedings or claims not involving the pursuit of any criminal charge. A

range of cases in which a link has or has not been detected is listed in the ECtHR’s

judgment in Allen, para 98. The original concept of a link was, presumably, to set some limit on the expansion of article 6(2) beyond its natural sphere. The ECtHR has however gone on to say that the link may exist either because of the perceived closeness of the subject-matter or simply because of a choice of words used by a court in the other proceedings. So, ultimately, the question whether article 6(2) applies can simply depend on the words used.

39. Second, where the link is held to exist, the ECtHR has drawn distinctions between (a) claims by a defendant for eg costs or compensation arising out of the termination in his or her favour of the criminal proceedings, and (b) claims by third party victims against a defendant who has been acquitted in criminal proceedings or against whom criminal proceedings have been discontinued. (For the purpose of any such distinction, at least some issues raised by the state would presumably need to be treated as being, in reality, claims by or in the interest of a third party, eg child care proceedings brought by the state.) In the former case, (a), the ECtHR has held

that, where there has been “an ‘acquittal on the merits’ in a true sense” (rather than

a discontinuance or an outcome sharing features associated by the ECtHR with a discontinuance) any voicing of suspicion of guilt by the public authority against whom such a claim is made constitutes a violation of article 6(2): Sekanina v Austria (1994) 17 EHRR 221 and Allen v United Kingdom, paras 122-123. Even in a case

of or similar to discontinuance, it appears, however, from para 128 of the ECtHR’s

judgment in Allen, as Lord Reed notes, that nothing must be said in a civil context

which calls into question the innocence of the defendant in the criminal context.

40. The rationale of any distinction between (“true”) acquittals and

discontinuance is not easy to understand. If the presumption of innocence is the key, one would have thought it equally applicable in both situations, or possibly even more so in a situation where the state has not felt able to pursue any criminal charges at all and has therefore discontinued. Be that as it may be, the application of any such distinction is itself fraught with difficulties - as is evident by a comparison of Sekanina itself with Allen. In Sekanina, the defendant was acquitted by the jury. The

Code of Criminal Procedure required acquittal “where the court finds that … the

alleged offence was not made out or that it has not been established that the accused

committed the act of which [she] is accused”. In contrast, the statutory condition for

awarding costs and compensation in each case depended, in summary, on the

absence of suspicion generated by the defendant’s conduct. The Austrian courts

made a careful analysis of the circumstances, including the criminal court file, and concluded that this condition was not satisfied. The Austrian Court of Appeal said:

“In order to establish whether or not such suspicion subsists, it

might be more useful to refer to the record of the jury’s deliberations. The content of this record … suggests rather that

in the jury’s opinion all suspicion had not been removed.

However, as the court called upon to rule under the [1969] Act

… is not bound, in its assessment of the position as regards

suspicion, by the verdict (of acquittal) at the trial, not even the

record of the jury’s deliberations is of decisive importance.”

After setting out a whole range of suspicious circumstances, the Court of Appeal concluded:

“Having had regard to all these circumstances, the majority of

which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion being

dispelled.”

41. The Austrian courts therefore distinguished between the acquittal and any entitlement to compensation. Nevertheless, the ECtHR said that it was of the opinion

that “Austrian legislation and practice nevertheless link the two questions - the

criminal responsibility of the accused and the right to compensation - to such a degree that the decision on the latter issue can be regarded as a consequence and, to

some extent, the concomitant of the decision on the former” (para 22). Bearing in

mind the distinction drawn by the Austrian courts, the suggested consequence and concomitance are both elusive. However, they were only invoked to establish that article 6(2) was engaged, in the sense that it was open to the complainant to assert that it was potentially infringed at all. What was critical is whether it was actually

infringed. Here, the ECtHR, after referring to that court’s “comprehensive list of

items of evidence against Mr Sekanina” and to the care with which that court had

examined the witness statements, and reciting the passage from the Court of

Appeal’s judgment, last set out, went on in the critical part of its judgment (para 30):

“Such affirmations - not corroborated by the judgment

acquitting the applicant or by the record of the jury’s

deliberations - left open a doubt both as to the applicant’s innocence and as to the correctness of the Assize Court’s

verdict. Despite the fact that there had been a final decision acquitting Mr Sekanina, the courts which had to rule on the claim for compensation undertook an assessment of the

applicant’s guilt on the basis of the contents of the Assize Court

file. The voicing of suspicions regarding an accused’s

innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such

suspicions once an acquittal has become final.”

42.       It appears that the ECtHR not only disagreed with the Austrian Court of

Appeal’s analysis of the trial and jury record, but also held it to be illegitimate, in

terms of the Convention and in the context of compensation, for the Austrian courts to embark in the first place on any consideration whether suspicions remained in the light of the acquittal. Contrast the ECtHR’s recent judgment in Allen, where the

ECtHR upheld the decision of the Secretary of State and of the courts judicially reviewing his decision that it was legitimate to refuse compensation on the ground

that the CACD’s setting aside of Ms Allen’s conviction merely established was that

the new evidence “might” have led the jury to a different result - meaning that the

conviction was unsafe. The jury’s acquittal in Sekanina was evidently analysed as a

“true” acquittal or exoneration, whereas the CACD’s was not. But what then would

be the position if a criminal judge or court were (as can happen) to acquit a defendant on the basis that the prosecution had not established its case to the requisite criminal standard and/or that the defendant was entitled to the benefit of the doubt? Why should such an outcome at first instance be treated any differently from the outcome before the CACD on appeal in Allen? And, if the two situations are alike, then the potential applicability of Sekanina must, in the light of Allen, be understood as severely limited in scope.

43.       Turning to claims by third party victims against a defendant after acquittal or

discontinuance (case (b) referred in para 39 above), the ECtHR’s position is that:

“regardless of whether the criminal proceedings ended in

discontinuation or acquittal, the court has emphasised that while exoneration from criminal liability ought to be respected in the civil compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof. However, if the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of article 6(2) of the Convention (see Ringvold, cited above, para 38; Y, cited above paras 41-42; Orr, cited above,

paras 409 and 51 …).”

See Allen v United Kingdom (2013) 63 EHRR 10, para 123.

44. So at first sight claims by third party victims fall outside the scope of the approach the ECtHR has developed for issues arising between the state and a defendant against whom the state has unsuccessfully pursued a criminal charge, leading to acquittal or discontinuance. The qualification, contained in the second quoted sentence, may, according to its text, be read as corresponding with the view taken by Lord Phillips and others including myself in Gale, that is to say that a later civil court must not undermine an acquittal by suggesting that a person ought to have been convicted on the criminal onus: see para 37 above. But, if this is the direction in which the ECtHR is, as one would hope, moving, it is unfortunate that it was accompanied by the citation of problematic authorities discussed further in paras 49- 53 below.

45.       Further, the current upshot, in the ECtHR’s own words in Allen, is that:

“125. It emerges from the above examination of the court’s

case law under article 6(2) that there is no single approach to ascertaining the circumstances in which that article will be violated in the context of proceedings which follow the conclusion of criminal proceedings. As illustrated by the

court’s existing case law, much will depend on the nature and

context of the proceedings in which the impugned decision was
adopted.

126. In all cases and no matter what the approach applied, the language used by the decision-maker will be of critical importance in assessing the compatibility of the decision and

its reasoning with article 6(2) ...”

46.       Although context is all in the law, this degree of vagueness about general

principles is indicative of the uncertain and shifting ground onto which the ECtHR’s

expansion of the meaning and application of article 6(2) has led.

47. Like Lord Phillips, with whose judgment in Serious Organised Crime Agency v Gale I concurred, I can however accept that, once criminal proceedings have concluded with acquittal, or, indeed, a discontinuance, no court should in civil or other proceedings express itself in terms which takes issue with the correctness of the criminal acquittal or discontinuance. Such an extension, achieving a degree of harmony with the approach in Strasbourg, seems at least workable and, of course, reflects what one would hope was anyway proper practice. But courts have often - in contexts not involving the pursuit of a criminal charge and using tools and language appropriate to such contexts - to engage with identical facts to those which have led to a criminal acquittal or discontinuance of criminal proceedings. In such circumstances, it is very commonly the case that the standard of proof will differ in the different contexts of criminal and other proceedings. It is, thus, entirely possible that a court may, in a context not involving the pursuit of any criminal charge, find on the balance of probabilities facts which could not be established beyond reasonable doubt in criminal proceedings. The question whether a link exists between the criminal and, say, civil proceedings then appears as a diversion from the real question. The ECtHR may itself be seen to accept that the concept of a link is not critical, because its statement that the words used may themselves create a sufficient link effectively collapses that concept into a consideration of the nature of the words. However, the question remains what nature of words is it permissible to use? The real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role.

48. If on the other hand, a court has, on the same facts as were in issue in criminal proceedings leading to an acquittal or discontinuance, determined a civil issue (or any issue other than a criminal charge) against the defendant, and has been confined itself to reasoning relevant to that issue, that means, as I see it, that it has applied the law, rather than infringed article 6(2). I do not believe that either the press or the public is wholly ignorant that the criminal standard of proof may on occasions lead to acquittal or discontinuance, in circumstances where the commission of the offence could be established on the balance of probabilities. There have been very well-publicised cases both here and across the Atlantic. There is also a legitimate public interest in such cases being publicly decided and clearly, rather than obscurely, reasoned.

49. Unfortunately, as it seems to me, the ECtHR has in a number of judgments condemned courts determining a civil issue for accurate descriptions of the elements of an offence constituting a tort simply because such elements also featured in past criminal proceedings. To require a civil court to tergiversate, by using words designed to obscure the fact that the law may find facts proved on a balance of probabilities which were not proved to the standard necessary for criminal conviction, does not assist either the law or the public or the defendant.

50. Y v Norway (2003) 41 EHRR 87 is an example of a civil court being apparently expected, in the name of article 6(2), to adopt circumlocutions which do no service to transparency. Ringvold v Norway (Application No 34964/97), a judgment issued by the same section in the same constitution on the same day as Orr v Norway (Application No 31283/04), shows to what fine and unsatisfactory distinctions the past case law may lead. Lord Hughes sets out in his para 118 the

circumstances in Orr v Norway. The ECtHR’s reasoning there was that:

“although the concept of ‘violence’ may not have been

exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum

[sic].”

51. A reading of the reasoning of the High Court, set out very fully, at para 9 in the report of Orr v Norway, shows the care actually taken by the High Court to explain the difference between the criminal proceedings and the civil claim. I will not set it out in full, but will take it as read and quote only the first and the last two paragraphs, where the High Court said:

“Despite the fact that [the applicant] has been acquitted of

having, with intent or gross negligence, raped [Ms C], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.

…

The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig

voldsbruk], only of overpowering by holding [Ms C]’s arms.

Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold].

Against the background of the majority’s finding that it has

been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C], the conditions for making an award of compensation have

been fulfilled. [...]”

52.       I am unable to discern what the Norwegian High Court should, while

fulfilling its civil role, have said in order to avoid conferring “criminal law features”

on its reasoning and violating article 6(2). The High Court went to great pains to differentiate and so reconcile its treatment of the criminal and civil issues, and the element of violence, although common to both issues, was a critical element in any adjudication of the civil claim, both as to liability and quantum of compensation.

The dissenting opinions of Judges Jebens, Nicolaou and Vajić appear unanswerable

on these points.

53.       Many of the points I have so far made are also encapsulated in Judge De

Gaetano’s separate opinion in the case of Ashendon and Jones v United Kingdom

(Application Nos 35730/07 and 4285/08) and his forceful and pragmatic remarks in his separate judgment in Allen v United Kingdom. I note also that in two more recent cases subsequent to Allen, in which the ECtHR recited the principles in Allen and concluded that a sufficient link existed for article 6(2) to be engaged, the ECtHR went on to accept the reasoning and language of the domestic courts as consistent with that article, although it had examined and relied on the same facts as had led to criminal acquittals. In the first case, Vella v Malta (Application No 69122/10) (11 February 2014) following acquittals on charges of theft and receiving, civil issues had arisen from third party claims to the relevant objects. In the second case, Müller

v Germany (Application No 54963/08) (27 March 2014), the issue of the applicant’s

safety for probationary release had led the court to form a view on facts occurring during a prior period of probation in respect of which the applicant had been charged and acquitted. Both these cases suggest that the ECtHR may be moving towards a limited view of any application of article 6(2) after acquittal, broadly consistent with that suggested by Lord Phillips in Gale: see paras 37 and 47 above. For my part, I would refuse to depart from Adams and Gale, or to follow the case law of the ECtHR, if and insofar as the ECtHR may in the past have gone further - ie further than to preclude reasoning that suggests that the defendant in criminal proceedings leading to an acquittal or discontinuance should have been convicted of the criminal offence with which he was charged. On that basis alone, in my view, these appeals

should be dismissed, since nothing in section 133(1ZA) or in the Secretary of State’s

rejections of the appellants’ claims to compensation involves any such suggestion.

Compatibility of section 133(1A) with article 6(2)?

54. Assuming that I am wrong about that, and article 6(2) can have some wider application to claims not involving the pursuit of any criminal charge, the question still arises whether section 133(1ZA) is incompatible with article 6(2). The ECtHR in Allen v United Kingdom, para 128, identified the criteria for compensation stated in the original section 133 as being:

“… put concisely, that the claimant had previously been

convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond

reasonable doubt that there had been a miscarriage of justice.”

It went on:

“The criteria reflect, with only minor linguistic changes, the

provisions of article 3 of Protocol No 7 to the Convention, which must be capable of being read in a manner which is compatible with article 6(2). The court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the

applicant’s criminal guilt.”

The words “beyond reasonable doubt” appearing in the original section 133 were

thus treated as an acceptable equivalent of the word “conclusively” appearing in

A3P7.

55. The Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48 identified for domestic purposes the four categories of case which might be suggested to fall within section 133 in its original form, and which I have set out in para 18 above. The Supreme Court held in R (Adams) that section 133, as originally enacted, enabled compensation to be claimed in categories (1) and (2), but not categories (3) and (4).

56. Allen v United Kingdom concerned what was, in the English domestic terms used in Adams, a category (3) case, ie a case “where the fresh evidence renders the

conviction unsafe in that, had it been available at the time of the trial, a reasonable

jury might or might not have convicted the defendant”. The ECtHR also treated the

case as having some features more akin to discontinuance than to “acquittal on the merits” (see para 39 above). However, that seems to have been so simply because

the CACD confined itself to the basic test (whether the conviction was safe) which it was required by statute to apply, and because the Administrative Court and Court

of Appeal, in the judicial review proceedings relating to the Secretary of State’s

refusal of compensation, proceeded accordingly: see in particular para 134 in Allen,

where the ECtHR said:

“The court does not consider that the language used by the

domestic courts [ie the courts considering the judicial review

of the Secretary of State’s refusal to pay compensation], when

considered in the context of the exercise which they were required to undertake, can be said to have undermined the

applicant’s acquittal or to have treated her in a manner

inconsistent with her innocence. The courts directed themselves, as they were required to do under section 133 [of the 1988 Act], to the need to establish whether there was a

‘miscarriage of justice’. In assessing whether a ‘miscarriage of

justice’ had arisen, the courts did not comment on whether, on

the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative

of the applicant’s guilt or innocence. They merely

acknowledged the conclusions of the CACD, which itself was addressing the historical question whether, had the new evidence been available prior to or during the trial, there would nonetheless have been a case for the applicant to answer. They consistently repeated that it would have been for a jury to assess

the new evidence had a retrial been ordered …”

57.       The ECtHR held in Allen that there had in these circumstances been nothing

in the English courts’ treatment of the defendant under section 133 to undermine her

acquittal or demonstrate a lack of respect for the presumption of innocence which
she enjoyed, and so no violation.

58. The ECtHR approached Allen on the basis of the language used by the English courts, rather than an examination of the meaning of section 133. Thus, it said (para 129), that:

“It was for the domestic courts to interpret the legislation in

order to give effect to the will of the legislature and in doing so they were entitled to conclude that more than an acquittal was

required in order for a ‘miscarriage of justice’ to be established,

provided always that they did not call into question the

applicant’s innocence. The court is not therefore concerned

with the differing interpretations given to that term by the judges in the House of Lords in R (Mullen) and, after the judgment of the Court of Appeal in the present case, by the judges in the Supreme Court in R (Adams). What the court has to assess is whether, having regard to the nature of the task that the domestic courts were required to carry out, and in the

context of the judgment quashing the applicant’s conviction,

the language they employed was compatible with the

presumption of innocence guaranteed by article 6(2).”

59. Differing views had been expressed in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1 as to whether section 133 as

originally enacted confined the right to compensation to category (1) cases, ie “cases

where the fresh evidence shows clearly that the defendant is innocent of the crime

of which he was convicted”. That was Lord Steyn’s view, with which Lord Bingham

did not associate himself.

1. The ECtHR’s focus in Allen on the language used by the English courts was

possible because it was not suggested in Allen that Ms Allen’s case fell into any

category other than category (3): see further paras 67-69 below. The ECtHR did however give a strong clue as to its thinking on the potential consequences under

article 6(2) of Lord Steyn’s construction of section 133, had the English courts relied

on and applied that, when in para 133 it said:

“But what is important above all is that the judgments of the

High Court and the Court of Appeal did not require the

applicant to satisfy Lord Steyn’s test of demonstrating her

innocence. The High Court in particular emphasised that the facts of R (Mullen) were far removed from those of the

applicant’s case and that the ratio decidendi of the decision in

R (Mullen) did not assist in the resolution of her case.”

61.       The new section 133(1ZA) confines compensation to circumstances where a

conviction is reversed by the CACD (or a pardon granted) “on the ground that a new

or newly discovered fact shows beyond reasonable doubt that there has been a

miscarriage of justice” in the sense that it “shows beyond reasonable doubt that the

defendant did not commit the offence”. It therefore confines compensation to cases within category (1), matching Lord Steyn’s view of its original meaning. Does this

mean that we should declare it to be incompatible with article 6(2)? I readily acknowledge that this might at first sight appear to be the implication of the

ECtHR’s thinking in the passage cited above from para 133 of the ECtHR’s

judgment in Allen. But the point has never been directly before or decided by the ECtHR, and I am far from confident that its implications have been worked through in a manner which makes it acceptable, or that the ECtHR would conclude that section 133(1ZA) is incompatible if the question were argued out before it.

62. The first matter that I would address is the clear understanding of the drafters of A3P7, which (although the United Kingdom has not ratified that Protocol) is clearly the origin of section 133: see para 16 above. That understanding appears in the Explanatory Memorandum which was prepared along with the draft Protocol by the Steering Committee for Human Rights, which submitted both documents together to the Council of Ministers on 22 November 1984, the date on which the Protocol was adopted. The Explanatory Memorandum makes clear that A3P7 contemplated just such a provision as now exists under English law in section 133(1ZA). It says:

“The intention is that states would be obliged to compensate

persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate, court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and

which had been overlooked by the trial judge.”

63.       The ECtHR in Allen addressed this by saying in para 133:

“However, the Explanatory Report itself provides that,

although intended to facilitate the understanding of the provisions contained in the Protocol, it does not constitute an authoritative interpretation of the text (see para 71 above). Its references to the need to demonstrate innocence must now be

considered to have been overtaken by the court’s intervening

case law on article 6(2).”

64.       As para 71 sets out, the full text of the Explanatory Memorandum was to the

effect that it

“... does not constitute an instrument providing an authoritative

interpretation of the text of the Protocol, although it might be of such a nature as to facilitate the understanding of the

provisions contained therein.”

As a statement of what the drafters actually intended by A3P7, one would have thought that the Explanatory Memorandum could not have been clearer. On what basis subsequent case law could silently overtake this clear original intention is not obvious.

65. In what follows, however, I shall approach the construction of section 133 independently of the Explanatory Memorandum. It might have been thought that, both in its original and in its current form, section 133 (as also A3P7) makes any right to compensation entirely dependent on the ground on which the criminal court (here the CACD) reverses the conviction (or on which a pardon is granted). That would, if correct, have had two consequences. First, it would have marked another distinction from Sekanina, where the award of compensation depended on its face on an independent evaluation of the position by a civil court. Since compensation would then simply have depended on how the criminal court expressed itself, the principle that neither the state nor a later court dealing with a civil claim should say anything different from the criminal court acquitting the defendant could not apply at all. Second, it would have meant that the present appellants had no claim, since a reading of the grounds on which the CACD allowed their appeals indicates that in each case it did so simply because the newly discovered facts made their convictions unsafe. In other words, the CACD’s actual decision was, as in Allen, simply that

their cases fell domestically within category (3).

66. I am not, however, prepared to accept such a construction of section 133 as correct. First, I note that section 133(3) provides that:

“The question whether there is a right to compensation under

this section shall be determined by the Secretary of State.”

Second, Lord Phillips in R (Adams) proceeded on an opposite basis, without any contrary reservation being made by any of his fellow judges. On this basis, the Secretary of State is given an adjudicative role (subject of course, where necessary,

to judicial review by the ordinary courts) in relation to the question whether “a new

or newly discovered fact shows beyond reasonable doubt that there has been a

miscarriage of justice”.

67. It is clear from Allen v United Kingdom that there is nothing wrong with a criminal court, when setting aside a conviction, confining itself (in accordance with

its role explained in paras 26 to 34 above) to indicating that “the new evidence, when

taken with the evidence given at trial, ‘created the possibility’ that a jury ‘might

properly acquit’ the defendant”; or explaining that “the evidence which was now

available ‘might, if it had been heard by the jury, have led to a different result’”; or

expressing itself in terms which “did ‘not begin to carry the implication’ that there

was no case for the applicant to answer”; or indicating that “there was ‘no basis for

saying’ on the new evidence that there was no case to go to a jury”: see paras 131-

132 in Allen.

68. All these are ways of expressing a conclusion that a case falls within category (3). They amount to saying that some ground for suspicion remains. Yet it is clear from Allen that they are acceptable and that Sekanina does not have contrary effect. A central plank of the ECtHR’s judgment in Allen is that there is nothing wrong with

a refusal of compensation on the ground that the case falls within category (3). That

is, as I read both the CACD’s judgments, also the ground on which the CACD

allowed both the present appellants’ appeals in the criminal proceedings, as well as

the ground on which the Secretary of State disallowed their claims for compensation.

69. It follows, as the other side of the coin from what I have already said, that the right to compensation can legitimately be expressed to depend upon whether (adopting the terminology in Adams) the conviction was set aside on a ground falling within category (1) or (2). Logically, a defendant wishing not merely to have a conviction set aside, but also wishing to recover compensation, must, unless the case is one of the rare cases (see paras 32 to 34 above) in which the CACD expresses its judgment setting aside the conviction in terms going further than a conclusion that the conviction is unsafe, persuade the Secretary of State to go further. In the rare case where the CACD does express itself in terms stating that the defendant is innocent, that will in practice be conclusive. The Secretary of State could not realistically go behind such a statement. But in other cases, where the CACD has merely determined that the conviction is unsafe, it must be open to the state to resist

a defendant’s suggestion that the case falls within a different category that would

entitle him to compensation, and for the Secretary of State to reach a conclusion on that basis. Otherwise, as soon as a defendant argues that the Secretary of State should go further than the CACD has gone and should view the circumstances as falling within a category for which the legislature has prescribed compensation, the state would have to accept this, and concede liability to pay compensation. This situation did not of course arise in Allen, because there was no attempt there by Ms Allen to bring her circumstances into any category other than that of category (3) within which the CACD had seen it as falling.

70. A defendant seeking compensation after the setting aside of his or her conviction by the CACD may therefore be required to show that the circumstances were not merely such that his conviction was unsafe. Using the terminology in Adams, the circumstances must be shown to fall within a higher category, which must, necessarily (and using the terminology in Adams), be either category (1) or category (2), or, since the enactment of section 133(1ZA), category (1) alone. Is there, in terms of compliance with the Convention, any sensible distinction between categories (1) and (2)? Category (1) is no more than a subset of category (2). If it is legitimate for the state to require a defendant to show at least that his or her case falls within category (2), on what basis could it be illegitimate for the state to require a defendant to show that it falls within category (1)? Putting the matter the other way around, the ECtHR has in para 133 in Allen implied that there would be an objection to requiring a defendant to show that the case fell within category (1). But

it has not (at least in terms) addressed category (2). It may be that the ECtHR’s

passing reference in para 133 to the inappropriateness of Lord Steyn’s test should

be understood as embracing both categories (1) and (2). If so, then, as the preceding paragraph of this judgment shows, the effect would be largely to undermine the outcome of Allen itself. All that an applicant for compensation would need to do was assert this his or her claim fell into a higher category than category (3), and the state would be precluded from asserting the contrary, because to do so would be to

infringe the “presumption of innocence”.

71. A way out of this impasse might exist if a sensible distinction could in the context of the Convention be drawn between categories (1) and (2). The legislation, or the language of the courts, could then be amended to speak not of proof of innocence, but of proof that the new or newly discovered fact so undermined the case against the applicant that no conviction could possibly be based on it. But could reference to a case as falling within category (2) sensibly be distinguished from

whatever may be thought to be the ambit of the ECtHR’s implied objection to

language bringing a case within category (1)? If, to use the ECtHR’s further words in Allen, para 136, it demonstrates “a lack of respect for the presumption of innocence which [a defendant] enjoys in respect of the criminal charge … of which

she has been acquitted” to refuse compensation on the ground that the defendant has

not shown innocence, it would presumably also demonstrate a lack of respect for the presumption of innocence to refuse it on the ground that the defendant had not shown that she was not only acquitted, but also that there was no evidence upon the basis of which she could possibly have been convicted. The two situations are distinct as a matter of domestic criminal law, and the legislature has distinguished between them for the purposes of compensation. But to distinguish between them in terms of the Convention and in relation to the question of infringement of the presumption of innocence, would seem to do no more than add another fine and unconvincing distinction, in an area where the application of the Convention already appears too full of unsatisfactory and unsatisfying distinctions and uncertainties.

72. I cannot therefore see any logical basis on which section 133(1ZA) can or should be seen as incompatible in terms of article 6(2) of the Convention. As to the

relationship between this court and the European Court of Human Rights’

jurisprudence, I am of course very conscious of what has been said by Lord Neuberger and myself in the passages cited by Lord Reed in his para 172. Like Lord Wilson, I would, however, draw attention to the further words of Lord Hughes and myself in R (Haney, Kaiyam and Massey) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344, para 21, where we said that:

“The degree of constraint imposed or freedom allowed by the

phrase ‘must take into account’ is context specific, and it would

be unwise to treat Lord Neuberger MR’s reference to decisions ‘whose reasoning does not appear to overlook or

misunderstand some argument or point of principle’ or Lord

Mance JSC’s reference to ‘some egregious oversight or

misunderstanding’ as more than attempts at general guidelines,

or to attach too much weight to his choice of the word

‘egregious’, compared with Lord Neuberger MR’s omission of

such a qualification.”

Conclusion

73.       Speaking for myself, I cannot regard the current state of European Court of

Human Rights’ case law as coherent or settled on the points critical to this appeal.

The second point has never been directly addressed; it is at most addressed indirectly by a passing dictum, uttered in a context in Allen where no detailed analysis was

necessary because the point did not directly arise. I do not share Lord Wilson’s view,

in para 94(c) of his judgment, that it is over-optimistic to suppose that the ECtHR will not think again in relation to article 6(2), generally or, at the least and critically,

in relation to its dictum regarding Lord Steyn’s approach quoted in para 49 above.

But, however that may be, I question whether the area of law currently under discussion is one where uniformity of approach is critical, even if the precise implications of the ECtHR case law were clear.

74. In summary, I am, for the reasons given, persuaded that it would be inappropriate to introduce into English law an interpretation of article 6(2) going beyond that identified by Lord Phillips, as set out in paras 37 and 47 above. But, in any event and even if article 6(2) does have a wider application in respect of claims not involving any criminal charge, I am not persuaded that section 133(1ZA) can or should be regarded as incompatible with article 6(2).

75.       For all these reasons a declaration of incompatibility is in my opinion

inappropriate.
LADY HALE:

76. In general, where it is clear that the European Court of Human Rights would find that the United Kingdom has violated the Convention in respect of an individual, it is wise for this court also to find that his rights have been breached.

The object of the Human Rights Act 1998 was to “bring rights home” so that people

whose rights had been violated would no longer have to go to the Strasbourg court to have them vindicated. I was initially disposed to think, for the reasons explained by Lord Reed, that the Strasbourg court would indeed find a violation in this case. However, I am persuaded that this is not as clear as once I thought it was, for several reasons.

77. There are, of course, all the objections in principle to applying the presumption of innocence to any proceedings taking place after the criminal charge has been determined, either by acquittal or discontinuance, so eloquently voiced by Lord Wilson and Lord Hughes. But it is surely too late in the day for the Strasbourg court to revisit that whole question. Furthermore, as Lord Reed has demonstrated, all the arguments deployed by the majority in Adams in holding that article 6(2) was simply not engaged in section 133 cases have been comprehensively rejected by the Strasbourg court. I would therefore agree with him that article 6(2) is engaged in this case.

78. However, it does not follow that the Strasbourg court would automatically find that it has been breached in this case. As Lord Mance explains (para 39), the Strasbourg court has drawn a distinction between (a) claims by a defendant for such things as costs or compensation arising out of the termination of a criminal case against him in his favour, either by acquittal or discontinuance, and (b) civil claims by or on behalf of third party victims against a former defendant in criminal proceedings which have been determined in his favour. In category (b) cases, where the parties are different, the standard of proof is different, the admissible evidence may also be different, and liability is not dependent upon criminal proceedings having been brought at all, the Strasbourg court has clearly accepted that the civil claim may be determined differently from the criminal proceedings without violating article 6(2). The important thing is the language adopted by the court when deciding the civil claim, as illustrated in the contrasting decisions in Ringvold v Norway (Application No 34964/97), and Y v Norway (2003) 41 EHRR 87. Lord

Mance suggests that “the real test is, or should be, whether the court in addressing

the civil claim has suggested that the criminal proceedings should have been determined differently” (para 47). I agree, and I share his regret that, in Orr v

Norway (Application No 31283/04), judgment of 15 May 2008, the Chamber, by a narrow majority, appear to have asked more of the civil court than this. While accepting that an acquittal in criminal proceedings is no bar to a civil claim for compensation based on the same facts, they appear to have demanded that the court hearing the civil claim phrase its decisions in less than fully transparent language. This is contrary to the rule of law: courts must always be able to explain their decisions fully, clearly and honestly. The one thing they must avoid is suggesting, in civil proceedings, that the defendant should have been convicted of the criminal offence. But I take comfort from the fact that this was the decision of a Chamber of the court, and by the narrow margin of four to three.

79. This is not a category (b) case, but Lord Mance detects signs that the Strasbourg court might also be prepared, despite the breadth of its language in Allen v United Kingdom (2013) 63 EHRR 10, to adopt an approach to category (a) cases

which in practice requires merely that the court determining the defendant’s claim

for costs or compensation refrain from any suggestion that he should have been

convicted of the offence. There is enough in the evolution of the court’s

jurisprudence to suggest that, for the most part and with some limited exceptions,
that is in fact what they are doing.

80. If that were indeed to be the approach of the Strasbourg court to these cases, it might still be that the insistence on showing beyond reasonable doubt that the claimant did not commit the crime in section 133(1ZA) of the Criminal Justice Act 1988 will lead to a violation of article 6(2) in some cases where compensation is denied. But I am not convinced that it would always do so. An indication is the

“strong clue” in para 133 of Allen in relation to Lord Steyn’s test (later adopted in

section 133(1ZA)), quoted by Lord Mance at para 63. But, as he points out, the court was not addressing such a case in Allen, which was acknowledged to be a case in Adams category (3), where the conviction was quashed because it was unsafe in the sense that the fresh evidence meant that a jury might or might not have convicted. Provided that this is explained without suggesting that the defendant should have been convicted, there is no breach of article 6(2).

180.     Turning to consider the circumstances in Allen itself, the court observed that

the applicant’s conviction was quashed on the ground that it was “unsafe”, because

new evidence might have affected the jury’s decision had it been available at trial.

The Court of Appeal did not itself assess all the evidence in order to decide whether guilt had been established beyond reasonable doubt. Nor had it ordered a retrial, since the applicant had already served her sentence. In these circumstances, although the quashing of the conviction resulted in a verdict of acquittal being entered, it was

not “an acquittal ‘on the merits’ in a true sense”. In that respect, the court contrasted

the case with Sekanina and the similar case of Rushiti v Austria (2001) 33 EHRR

56, “where the acquittal was based on the principle that any reasonable doubt should

be considered in favour of the accused”. The court observed, at para 127, that

“in this sense, although formally an acquittal, the termination

of the criminal proceedings against the applicant might be considered to share more of the features present in cases where

criminal proceedings have been discontinued.”

181. The court next considered whether the criteria laid down by section 133 as originally enacted were themselves incompatible with article 6(2). As it observed, there was nothing in the criteria which called into question the innocence of an acquitted person, and the legislation did not require any assessment of the

applicant’s criminal guilt.

182. The court next considered the approach adopted by the domestic courts in the case before it. They had been entitled under the Convention to conclude that more than an acquittal was required in order to establish a miscarriage of justice,

“provided always that they did not call into question the applicant’s innocence”. In

that regard, the court referred to the view expressed by Lord Steyn in Mullen (subsequently adopted by the minority in Adams) that a miscarriage of justice, within the meaning of section 133(1), would only arise where the person concerned was innocent, and that section 133 therefore required that the new or newly discovered

fact must demonstrate the applicant’s innocence beyond reasonable doubt. The court

observed that “what is important above all is that the judgments of the High Court

and the Court of Appeal did not require the applicant to satisfy Lord Steyn’s test of

demonstrating her innocence”.

183. The difference in the present case is that the insertion of section 133(1ZA) into the 1988 Act has had the effect of introducing a test that the fresh evidence has to establish beyond reasonable doubt that the applicant did not commit the offence. In the present proceedings, the Divisional Court and the Court of Appeal considered this test to be compatible with article 6(2), since it did not require the applicant to establish his innocence, but imposed a narrower requirement, namely that he demonstrate that his innocence had been established by a new or newly discovered

fact “and nothing else”, as the Court of Appeal stated at para 48. The refusal of an

application under section 133 did not, therefore, in their view cast doubt on the

person’s innocence generally. The Court of Appeal observed that a focus on the new

or newly discovered fact and nothing else was central to limiting eligibility for compensation to a narrower category of cases than the entire corpus of cases where

a conviction was quashed. It also considered that the European court’s observations

about Lord Steyn’s test in Mullen were directed to the dangers of imposing a general requirement of having to demonstrate innocence, which was not what was required by section 133.

184. I do not find this an easy question, but I have respectfully come to a different conclusion from the courts below. In the context of decisions made under the amended section 133, the distinction between a requirement that innocence be established, and a requirement that innocence be established by a new or newly discovered fact and nothing else, appears to me to be unrealistic. A person who can make a valid application under section 133 is, of necessity, someone whose conviction has been quashed because of the impact of a new or newly discovered fact: that follows from the terms of section 133(1). In most cases which satisfy that criterion, there will not be any other reason for the quashing of the conviction. A decision by the Secretary of State that the new or newly discovered fact does not

establish the person’s innocence does not, therefore, usually leave open a realistic

possibility that he or she has been acquitted for some other reason, which that decision leaves unaffected. On the contrary, the implication of the decision is likely to be that, although the new or newly discovered fact has led to the quashing of the

conviction, the person’s innocence has not been established. The decision therefore

casts doubt on the innocence of the person in question and undermines the acquittal.

185. The idea that there is a meaningful distinction between assessing whether innocence has been established by a new or newly discovered fact, and assessing whether innocence has been established in a more general sense, also appears to me to be unrealistic for another reason. Normally, at least, the significance of a new piece of evidence can only be assessed in the context of the evidence as a whole. That is illustrated by the present cases. The photograph of Mr Hallam in Mr

Harrington’s company does not in itself tell one anything about his guilt or

innocence of the murder. It is only when considered in the context of the alibi

evidence that its significance becomes apparent. In Mr Nealon’s case, the presence

of an unknown male’s DNA on the victim’s underwear tells one nothing in itself

about Mr Nealon’s guilt or innocence of an attempted rape. It is only in the context

of her evidence about the behaviour of her attacker and her contact with other males on the day in question, and the evidence of other witnesses eliminating the most likely alternative explanations of the presence of the DNA, that its significance can be assessed. There is no material difference, in these situations, between asking

whether the applicant’s innocence has been established by the new or newly

discovered fact, and asking whether his innocence has been established.

186. The majority of this court have reached the same conclusion as the courts below, but for somewhat different reasons. As I understand their reasoning, they emphasise that, in Allen v United Kingdom, the Grand Chamber found no violation of article 6(2) in the judgment of the Court of Appeal upholding the refusal of compensation under section 133 in its original form to an applicant who, in terms of the domestic categories subsequently adopted in Adams, fell into category 3, and failed to fall into category 2. They consider that it must, or at least may, be equally compatible with article 6(2) to require the applicant to demonstrate that he falls into category 1.

187. I accept that the implication of the decision in Allen v United Kingdom is that it is not necessarily incompatible with article 6(2) to refuse compensation under section 133 in cases falling within the category later described in Adams as category 3: that is to say, cases where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. The effect of the decision of this court in Adams, confining compensation to cases in category 2 (where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it), has been held in later cases before the European court to be compatible with article 6(2): see, for example, ALF v United Kingdom (Application No 5908/12) (unreported) given 12 November 2013. It is not a violation of the presumption of innocence to say that a case falling within category 3 (or category 4: cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted) does not constitute a miscarriage of justice. Nor is there any objection under article 6(2) to other criteria for the award of compensation that do not require the applicant to establish his or her innocence: for example, criteria precluding compensation where successful appeals are brought within time, or where convictions are quashed because of misdirections. The problem which arises under article 6(2) when compensation is confined to persons in category 1 - cases where the fresh evidence shows clearly that the defendant is innocent of the crime of which he was convicted - as under section 133 as amended, is quite specific. It is that it effectively requires the Secretary of State to decide whether persons whose convictions are quashed because of fresh evidence have established that they are innocent. In Allen, the Grand Chamber found at para 128 that there was nothing in the criteria set out in section 133 as it then stood which called into question the innocence of an acquitted person, and that the legislation itself did not require any

assessment of the applicant’s criminal guilt. I doubt whether the same could be said

of section 133 in its amended form.

1. In cases falling within category 2, the person has received an acquittal “on

the merits”, in the language used by the European court: the Court of Appeal has

assessed all the evidence and has concluded that, allowing the defendant the benefit of any reasonable doubt, only a verdict of acquittal could reasonably be arrived at. The principle in Sekanina therefore applies, and it is no longer permissible to rely

on suspicions regarding the defendant’s innocence, as the Secretary of State must

do when refusing an application for compensation under the amended section 133

on the ground that the fresh evidence does not demonstrate the applicant’s

innocence. Furthermore, the implication of para 128 of the European court’s

judgment in Allen - a category 3 case - is that even in cases where there has not been

an acquittal “on the merits” in that sense, as may be the position in the present cases,

it is nevertheless impermissible for the criteria for awarding compensation to “[call]

into question the innocence of an acquitted person or to require any assessment of

the applicant’s criminal guilt”. If the appellants’ criminal guilt is to be assessed, they

are entitled under the Convention to the protections afforded in criminal
proceedings, including the benefit of the presumption of innocence.

1. So far as the European court’s comments about Lord Steyn’s speech are

concerned, the court appears to me to have understood that Lord Steyn required the

applicant’s innocence to be established by a new or newly discovered fact. Its

comments seem to me to provide some support for my conclusion. The critical

question does not however turn on how the court’s references to Lord Steyn’s speech

are to be construed, but on how the approach to article 6(2) laid down by the court applies to section 133 in its amended form. For the reasons I have explained, the criterion laid down in section 133(1ZA) is in my opinion incompatible with article 6(2).

190. Counsel for the Secretary of State submitted, however, that a violation of article 6(2) was avoided by means of the Secretary of State’s statement, in each of

the decision letters, that nothing in the letter was intended to undermine, qualify or cast doubt upon the decision to quash the conviction, and that the applicant was presumed to be and remained innocent of the charge brought against him. I am unable to agree that this statement ensures that article 6(2) is respected. The application of a test which in substance infringes the presumption of innocence is not rendered acceptable by the addition of words intended to avoid a conflict with article 6(2), if the overall effect is nevertheless to undermine a previous acquittal. The point is illustrated by the case of Hammern v Norway, where the operation of a statutory test which required the applicant to prove that he did not perpetrate the acts forming the basis of the charges was incompatible with article 6(2), notwithstanding

a statement in the decision that “I should like to stress that the refusal of a

compensation claim does not entail that the previous acquittal is undermined or that

the acquittal is open to doubt”. The European court commented at para 48 that it was “not convinced that, even if presented together with such a cautionary statement, the

impugned affirmations were not capable of calling into doubt the correctness of the

applicant’s acquittal, in a manner incompatible with the presumption of innocence”.

That comment is equally apposite in the present case.

191. Finally on this issue, counsel for the Secretary of State submitted that, in order for this court to find that section 133(1ZA) was incompatible with article 6(2), it would have to go significantly further than did the European court in Allen, contrary to the principle expressed in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 23. That argument cannot be accepted. The conclusion which I have reached is based on principles which were already well-established before the case of Allen, and which received the approval of the Grand Chamber in that judgment.

Conclusion on Issue 2

1. For these reasons, I conclude that the definition of a “miscarriage of justice”

introduced by section 133(1ZA) of the 1988 Act is incompatible with article 6(2) of

the Convention, and would have made a declaration to that effect.

LORD KERR: (dissenting)

Introduction

193. I agree with Lord Reed that the appeals in these cases should be allowed and that the declaration of incompatibility which he proposes should be made.

194. It is important to keep clearly in mind that the focus of the case is on the compatibility of section 133(1ZA) of the 1988 Act with article 6(2) of ECHR. The starting point for any discussion of this question must be whether the article is engaged by decisions taken under section 133. For the reasons so compellingly given by Lord Reed, such decisions do fall within the ambit of article 6(2). Inasmuch as the decision in Adams suggested otherwise, it should not be followed. In any event, as Lord Reed has demonstrated, the decision in that case conflated the questions whether article 6(2) was engaged and whether it had been breached.

195. Lady Hale agrees that article 6(2) is engaged - see para 77 of her judgment. Lord Mance in paras 35-53 of his judgment discusses whether article 6(2) should be

“applied” to decisions taken under section 133. As he has pointed out, recent case

law from the Strasbourg court has focused on the question whether there is a sufficient link between the impugned decision and the second aspect of the article

6(2) obligation. But, on Lord Mance’s analysis, the focus is not concerned with the

question whether the article was engaged but rather on whether it has been violated. I do not construe his judgment, therefore, as suggesting that this species of decision lies outside the ambit of article 6(2).

196. Lord Wilson agrees (albeit with reluctance) with Lord Reed, that, if article 6(2) has the meaning ascribed to it by the ECtHR, in particular in the Allen case, section 133(1ZA) of the 1988 Act is incompatible with it. Although he declines to follow the case law of Strasbourg on the question of the meaning of article 6(2), I detect nothing in his judgment which suggests that he would find that decisions made under section 133 did not fall within its ambit, if interpreted in accordance with that case law.

197. Lord Hughes has said that article 6(2), in its second aspect, applies and thus governs subsequent proceedings when there is a link between them and the previously concluded criminal proceedings. In contrast to Lord Mance, it would appear that Lord Hughes considers that the existence of a link was prerequisite to

the engagement of article 6(2). But, Lord Hughes’ judgment does not appear to me

to be inconsistent with acceptance that the link is present where a decision under
section 133 requires to be taken.

198. At para 99(c) of his judgment Lord Hughes sets out four considerations said to be indicative of the likelihood of the existence of a link, all of which, apart possibly from the final one, seem to be present in this case. They are present where: (i) an analysis of the criminal judgment must be undertaken; (ii) where a review or evaluation of the evidence in the criminal file must take place; (iii) where there has

to be an assessment of the applicant’s participation in some or all of the events

leading to the criminal charge; and (iv) where comment must be made on the

subsisting indications of the applicant’s possible guilt.

199. Plainly, scrutiny of the criminal judgment must underpin any decision under section 133; likewise, a review of the evidence against an applicant is indispensable; and this must include an assessment of his participation in the events which led to

the criminal charge. The only possible debate is as to whether “comment … on

subsisting indications of the applicant’s possible guilt” requires that a statement be

made by the decision-maker or merely that a judgment be reached by him on these questions: does contemporaneous information lead to the conclusion that the applicant has been fully exonerated; or that he could never have been properly convicted; or whether sufficient new material has been adduced which rendered the conviction unsafe on the basis that a jury might or might not have convicted him had such material been produced at his trial. It seems to me that the decision under section 133 will inevitably require a judgment to be made on those issues and, if that

is what is required to meet Lord Hughes’ final criterion, the decision plainly comes

within the ambit of article 6(2).

200. Lord Lloyd-Jones does not directly address the question of the engagement of article 6(2) as opposed to its possible violation but, as with Lord Wilson’s

judgment, I detect nothing in his judgment which is counter indicative of acceptance
that article 6(2) is at least engaged by decisions made under section 133.

201. In light of all this, it appears to me that there is general agreement among the members of the court - or, at least, no overt dissent, that decisions made under section 133 fall within the ambit of article 6(2). The question to be concentrated upon, therefore, is whether the context set by section 133(1ZA) involves an inevitable conflict with the article. Put more simply, if a decision as to whether a person whose conviction has been quashed is to receive compensation only if he shows that he was innocent, is such a requirement compatible with article 6(2)?

Innocence

202. There has been much erudite discussion in the judgments of other members of the court about the nature of innocence and the inaptness of the criminal trial to investigate and pronounce upon the question whether a defendant is innocent, as opposed to not being proved to be guilty. I do not propose to add to that discussion beyond observing that, inevitably, there will be many who are charged with or tried on criminal offences who are truly innocent but are unable to establish their innocence as a positive fact. That undeniable circumstance must form part of the backdrop to the proper approach to the application of article 6(2) of ECHR.

203. It seems to me that much of the jurisprudence on the “second aspect” of the sub-article has been influenced, albeit perhaps not explicitly, by the dilemma that

this presents. The opportunity to proclaim one’s innocence and the right to benefit

from the recognition and acceptance of that condition lies at the heart of much of the dispute in this case and much of the case law of the Strasbourg court on the subject. But an inevitable sub-text is that establishing innocence as a positive fact can be an impossible task. This is especially so if conventional court proceedings do not provide the occasion to address, much less resolve, the issue.

204. On the other hand, those who have been acquitted simply because the properly high standard for criminal conviction has not been met, but against whom real suspicions as to guilt remain, should not be able to shelter behind the shield of innocence that article 6(2) establishes. In particular, they should not be immune from civil suit from their victims when a less onerous burden of proof as to their involvement in the activity alleged in the criminal proceedings is involved.

The Strasbourg jurisprudence

205. It would be idle for me to recapitulate on the extensive examination of the case law of ECtHR that has been undertaken by the other members of the court. I consider that Lord Reed has convincingly demonstrated (in paras 161-175 of his

judgment) that there is a “clear and constant” line of jurisprudence from that court

which establishes that the relevant question is “whether there was a link between the

concluded criminal proceedings and the compensation proceedings, having regard

to the relevant considerations” set out in para 104 of the judgment in Allen. For the

reasons that Lord Reed has given, I consider that such a link is clearly established.

The “relevant considerations” in this context will, of course, include the

circumstances of the applicant’s ultimate acquittal of the charge against him. If this

is on the basis of a doubt as to whether he should have been acquitted, he will not be able to avail of the article 6(2) protection; if, on the other hand, he can show that he ought never to have been charged or convicted, he will.

1. I do not agree with Lord Mance’s proposition that “the real test is, or should

be, whether the court in addressing the civil claim has suggested that the criminal

proceedings should have been determined differently” (para 47 of his judgment).

There are two fundamental objections to that formulation of the test. The first is that it would cut out a swathe of deserving applicants when they have not been able to prove that they are innocent when they are in fact. The second is that their fate is determined on the phraseology which happened to be chosen by the court.

Conclusion

207. For these reasons and those much more fully expressed by Lord Reed, I would make the declaration of incompatibility which the appellants seek.