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JUDGMENT
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
Lord Mance
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Lloyd-Jones
JUDGMENT GIVEN ON
30 January 2019
Heard on 8 and 9 May 2018
Appellant
(Hallam)
Respondent
Heather Williams QC James Strachan QC
Adam Straw Mathew Gullick
(Instructed by Birnberg
Peirce
)
(Instructed by The
Government Legal
Department
)
Appellan
t
(Nealon)
Dinah Rose QC
Matthew Stanbury
(Instructed by Quality
Solicitors Jordans
)
Intervener (JUSTICE)
Henry Blaxland QC
Jodie Blackstock
(Instructed by White &
Case LLP
)
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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):
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“… 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.”
5. 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
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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 Antisocial 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’.”
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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.”
(2) Mr Nealon’s case
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
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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
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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.”
14. 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,
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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.
16. 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.
17. 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
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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.
18. 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,
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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.
21. 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
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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.
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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
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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.
30. 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’”.
31. 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).
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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 MullinsJohnson, 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)?
35. Article 6 is headed “right to a fair trial” and article 6(2) reads:
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“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
Page 16
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
Page 17
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
Page 18
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
Page 19
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) …”
Page 20
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
Page 21
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
Page 22
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
Page 23
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).
Page 24
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:
Page 25
“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.
60. 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
Page 26
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
Page 27
“… 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”.
Page 28
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
Page 29
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
Page 30
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.
Page 31
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.
Page 32
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).
81. The cases before us are also cases, like Allen, in which the fresh evidence
rendered the conviction unsafe, in the sense that, had it been available at trial, a
reasonable jury might or might not have convicted the defendant. The Grand
Chamber found no violation in the case of Allen. In my view, the issue of
incompatibility would be better addressed in a case which fell clearly within
category (2), where it might be difficult to explain the difference between that and a
category (1) case without casting doubt on the acquittal. But if it be right that the
true question is whether the Secretary of State, or a court in judicial review
proceedings, has suggested that the defendant ought to have been convicted, then it
does not seem impossible to explain a refusal of compensation without doing this.
82. Furthermore, where a particular statutory provision may or may not lead to a
violation, it is not appropriate, in my view, to make a declaration of incompatibility
in proceedings brought by an individual in respect of whom the Strasbourg court is
unlikely to find a violation, as I believe these to be. I should add that my view of the
Page 33
appropriateness of making a declaration of incompatibility in this case has nothing
to do with my view of the merits of the amendment to section 133.
LORD WILSON:
83. My view is that the present appeals place the court in a deeply uncomfortable
position.
84. We afford profound respect to the decisions of the ECtHR and recognise its
unparallelled achievements in raising the standards according to which member
states of the Council of Europe, undoubtedly including the UK, must treat their
people.
85. I am, however, persuaded that, in its rulings upon the extent of the operation
of article 6(2) of the Convention, the ECtHR has, step by step, allowed its analysis
to be swept into hopeless and probably irretrievable confusion. An analogy is to a
boat which, once severed from its moorings, floats out to sea and is tossed helplessly
this way and that.
86. In what follows I seek to summarise my reasons for this grave conclusion:
(a) The meaning of an article is to be collected from its terms in their
context and in the light of its object and purpose: article 31(1)(c) of the
Vienna Convention on the Law of Treaties, 1969 Cmnd 4140.
(b) Paragraph 1 of article 6 distinguishes between “civil rights and
obligations” and a “criminal charge”; and the language of para 3 of the article
makes clear that it addresses the rights only of those subject to the latter,
namely of “[e]veryone charged with a criminal offence”. Such is the context
of para 2 of the article, which, like para 3, confers a right only on “[e]veryone
charged with a criminal offence”.
(c) When article 6(2) provides that everyone charged with a criminal
offence shall be presumed innocent until proved guilty, its meaning, if
collected in accordance with the Vienna Convention, can only be that
everyone shall be presumed to be innocent for the purpose of the criminal
law until proved to be so. Following an acquittal, the presumption has no
further role. The acquitted defendant has no need for a mere presumption,
potentially rebuttable, that he is innocent. For, subject to the remote
possibility of a second criminal trial, it has become an irrebuttable fact that
Page 34
he is innocent – for the purpose of the criminal law. The apparatus for
punishment within the criminal law cannot be applied to him.
(d) The trouble is that the ECtHR has divorced the word innocent from its
context and, in the words of Judge De Gaetano in para 3 of his separate
opinion in the Ashendon case, cited by Lord Mance in para 53 above, has
launched article 6(2) into an orbit separate from that of the article. He there
proceeded to call for a thorough re-examination of its proper place in the
article.
(e) The entitlement of the ECtHR, referred to by Lord Mance in para 35
above, to give an autonomous meaning to the articles of the Convention is
intended to override any distorted meaning ascribed to them contrary to the
Vienna Convention by individual states, not to license the ECtHR to ascribe
a distorted meaning to them: see paras 80 and 81 of its judgment in the Engel
case, to which Lord Mance there refers.
(f) As Judge Power said in para 7 of her strong separate opinion in the
Bok case, cited by Lord Hughes in para 120 below, a reference to a violation
of the presumption of innocence when a person is not – or is no longer – facing
a criminal charge divorces the principle from its purpose.
(g) The ECtHR has blurred the crucial distinction between guilt for the
purposes of the criminal law and guilt for other purposes, determined on a
different basis.
(h) Following its removal of the presumption out of the orbit of article 6,
the ECtHR has been required to explain its application in two main areas.
(i) The first main area is that of civil claims, whether brought against
acquitted defendants by their alleged victims or by the state in aid of
protecting children or brought against unsuccessful prosecutors by acquitted
defendants. A fair hearing of these civil claims, to which the claimants and
the defendants (including the former prosecutors) are all entitled under article
6(1), will usually require a determination, by reference to probabilities, of
facts not established beyond reasonable doubt in the criminal proceedings.
(j) In the Y case, cited by Lord Mance in para 50 above, the applicant had
been acquitted on appeal of homicide and sexual assault. The deceased’s
parents sued him for compensation. Under Norwegian law they had to show
that it was “clear on the balance of probabilities” that he had killed and
Page 35
sexually assaulted their daughter. In awarding compensation to them the
Norwegian court, upheld on appeal, found “it clearly probable that [the
applicant] has committed the offences”. The ECtHR held that the court had
cast doubt on the correctness of his acquittal and had therefore violated article
6(2).
(k) In the Orr case, also cited by Lord Mance in para 50 above, the ECtHR
followed the decision in the Y case. It applied the presumption to a civil
judgment in Norway that a man whom a jury had acquitted of raping a woman
had nevertheless, on the balance of probabilities, when using a degree of
violence, had sex with her without her consent and had thereby committed a
tort against her for which he should pay damages. The ECtHR held that the
judgment had violated the presumption of innocence because the use made in
it of the concept of violence had conferred criminal law features on its
reasoning: see the passage there quoted by Lord Mance. So the Norwegian
court had apparently violated the presumption by fully explaining its factual
findings: it should apparently have diluted its findings by omitting the finding
that the man had used a degree of violence. There was a powerful dissenting
opinion by Judge Jebens, who disputed that article 6(2) was even applicable
to the civil judgment, let alone that it had been violated.
(l) Are the conclusions of the ECtHR in the Y case and in the Orr case
tenable?
(m) The other main area is that of claims for compensation against the state
by defendants for their detention in prison, whether on remand or otherwise,
prior to their acquittal at trial or on appeal.
(n) The Sekanina case, cited by Lord Mance in para 39 above, concerned
the Austrian provision for payment of compensation to an acquitted
defendant referable to his period in custody on remand if suspicion that he
committed the offence was dispelled. The Austrian court’s decision that the
suspicion was not dispelled was held to be incompatible with the
presumption. The problem for the ECtHR was that in the Englert and
Nölkenbockhoff cases, cited by Lord Hughes in para 106 below, it had held
that refusals of compensation based on suspicions of guilt were not
incompatible with the presumption. In the event the court distinguished them
on the basis that there the criminal proceedings had ended prior to their final
determination on the merits. But why was this distinction relevant to the reach
of the presumption?
(o) Is the conclusion of the ECtHR in the Sekanina case tenable?
Page 36
(p) The decision in the Sekanina case was followed in the Hammern case,
cited by Lord Reed in para 151 below. The significance of the latter lies in
the striking assertion, at paras 41 and 42 of the judgment, that, although not
even the court’s autonomous concept of a criminal charge extended to the
compensation proceedings, article 6(2) nevertheless applied to them.
(q) The decision of the Grand Chamber in the Allen case, cited by Lord
Mance in para 22 above, concerned, as do the present appeals, a different and
more circumscribed provision in the UK in section 133(1) of the Criminal
Justice Act 1988 for compensation to be paid to certain defendants ultimately
acquitted on appeals out of time. As Lord Mance explains in para 16 above,
the section was enacted to give effect to the UK’s international obligations
under article 14(6) of the International Covenant on Civil and Political Rights
1966 (“the Covenant”). The compensation is for “punishment as a result of
[a] conviction” and the obligation to pay it arises upon the reversal of a
conviction “on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice”.
(r) It is noteworthy that article 14(2) of the Covenant provides for what it
calls a “right to be presumed innocent” but is otherwise in precisely the same
terms as article 6(2) of the Convention. Evidently the drafters of article 14
did not regard it as inconsistent to provide within it both for a presumption of
innocence on the one hand and for an inquiry into whether an ultimately
acquitted defendant had or had not been the victim of a miscarriage of justice
on the other.
(s) Indeed in the WJH case, cited by Lord Hughes in para 121(vi) below,
the Human Rights Committee, established under the Covenant to monitor its
implementation, decided that the presumption of innocence in article 14(2)
“applies only to criminal proceedings and not to proceedings for
compensation”.
(t) In 1984 the Council of Europe decided to bring the Convention into
line with article 14(6) of the Covenant by providing in article 3 of Protocol 7
a right to compensation for certain ultimately acquitted defendants in almost
precisely the same terms. In para 25 of its explanatory report upon the
protocol, which it said did not constitute an authoritative interpretation of its
articles, the Steering Committee for Human Rights, appointed by the Council,
suggested that the intention behind article 3 was to require compensation
“only in clear cases of miscarriage of justice, in the sense that there would be
acknowledgment that the person was clearly innocent”. The committee’s
suggestion was inconsistent with any idea that a finding that an acquitted
Page 37
defendant was not clearly innocent would be incompatible with the
presumption of innocence.
(u) In the Allen case the applicant had ultimately been acquitted on appeal
on the basis that fresh evidence might reasonably have affected the jury’s
decision. She complained that the UK courts had acted incompatibly with the
presumption of her innocence by refusing to quash a decision that she had not
established a miscarriage of justice and was therefore not entitled to
compensation under section 133(1), then unamended, of the 1988 Act. The
court at first instance had, for example, observed that there remained
powerful evidence against her. The Grand Chamber sought to undertake an
exhaustive review of the court’s case law on the role of article 6(2) in various
types of proceedings which take place after an acquittal; and by implication
it approved all of the court’s previous decisions.
(v) First the Grand Chamber addressed the circumstances in which, after
acquittal, article 6(2) applied. It reiterated in para 96 that the article might
apply even when its words, given their autonomous meaning, did not apply.
It suggested in para 94 that, after acquittal, the article’s aim was two-fold: to
protect an acquitted defendant from being treated by a public authority as in
fact guilty of the offence charged and, perhaps overlapping with his rights
under article 8, to protect his public reputation. It held in para 103 that the
article therefore required that he be treated as someone innocent “in the eyes
of the law”, not just (so I interpolate) in the eyes of the criminal law. It
concluded at para 105 that the article applied whenever the applicant
demonstrated a “link” between the criminal proceedings and the subsequent
proceedings. It exemplified the necessary link when in para 107 it turned to
the facts of the Allen case: the link existed there because the resolution of the
criminal proceedings in the appellate court had triggered the right to apply
for compensation and because the requirements of section 133 required
reference to the judgment of that court.
(w) Then the Grand Chamber addressed the circumstances in which, if
after an acquittal it applied to a later decision, article 6(2) had been violated.
In para 122 it approved the decision in the Sekanina case that the voicing of
suspicions of guilt in compensation proceedings would violate the article if
the conclusion of the criminal proceedings had been a final determination on
the merits, as opposed to their discontinuation; but in para 123 it held, without
explanation, that the distinction did not apply to civil claims brought against
acquitted defendants by alleged victims. Its conclusion at paras 125 and 126
was that there was “no single approach” to ascertainment of a violation; that
“much will depend on the nature and context” of the subsequent proceedings;
but that in every case “the language used by the decision-maker will be of
critical importance”. It proceeded to hold at para 136 that the terms in which
Page 38
the UK courts had rejected the applicant’s claim had not violated article 6(2).
But at para 127 it had observed, without explanation, that the setting aside of
her conviction in the appeal court had been more like a discontinuance than
an acquittal on the merits, with the result (presumably) that the suspicions of
guilt articulated by both domestic courts in the compensation proceedings did
not constitute a violation.
(x) In the Allen case Judge De Gaetano again entered a separate opinion.
In para 3 he described the court’s conclusion as being that “it all depends on
what you say and how you say it” and in para 5 he reiterated his belief that
article 6(2) had no application to compensation proceedings following
acquittal.
(y) With acute professional discomfort I ask: in relation to the
circumstances in which article 6(2) applies and in which it is violated, are the
conclusions of the Grand Chamber in the Allen case tenable?
87. I turn to this court’s duty under section 2(1)(a) of the Human Rights Act 1998
[the 1998 Act] to “take into account” any relevant judgment of the ECtHR.
Inevitably there have been a number of observations in this court, and in the
appellate committee which preceded it, that the duty to take account of such a
judgment should almost always lead our domestic courts to adopt it. Particularly in
the early years of the life of the 1998 Act, the UK courts were strikingly loyal to the
judgments of the ECtHR notwithstanding the open texture of section 2(1)(a): see
Krisch, The Open Architecture of Human Rights Law [2008] 71 MLR 183, 203.
88. In R (Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, the appellate
committee perceived no need to confront, as problematic, the jurisprudence of the
ECtHR in relation to the relevant article of the Convention, which was article 6(1).
It applied it without apparent difficulty. But Lord Slynn of Hadley observed at para
26:
“In the absence of some special circumstances it seems to me
that the court should follow any clear and constant
jurisprudence of the European Court of Human Rights. If it
does not do so there is at least a possibility that the case will go
to that court, which is likely in the ordinary case to follow its
own constant jurisprudence.”
Page 39
What he there said was, of course, no part of the decision of the committee. It was,
as he made clear, a purely personal observation, made in passing. No doubt, so far
as it went, it was also a helpful observation. But Lord Slynn would no doubt have
been surprised to learn that, partly as a result of remarks made by Lord Bingham of
Cornhill at para 20 of his judgment in the Ullah case, cited by Lord Hughes in para
125 below, his observation has at times been regarded as part of what the committee
had held; and no doubt surprised to learn that his adjectives have at times been
treated as if found in a statute. Is the jurisprudence “clear”? Is the jurisprudence
“constant”? In the present case one might well express doubt, as does Lord Hughes
in para 126 below, about whether the jurisprudence is clear; but my view is that such
an exercise would be inappropriate. The words with which Lord Slynn chose to
describe a reasonable approach in that particular case should not, with respect to
him, be subjected to so intimate an examination.
89. On other occasions this court has expressed the proper approach to the
jurisprudence of the ECtHR in different terms. In para 173 below Lord Reed quotes
in particular from para 48 of the judgment of the court delivered by Lord Neuberger
of Abbotsbury MR in the Manchester City Council case and from para 27 of the
judgment of Lord Mance in the Chester case. In my view however the weight to be
given to both quotations was correctly described by Lord Mance and Lord Hughes
in their joint judgment in the Kaiyam case, cited by Lord Mance in para 72 above,
as follows:
“21. 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
…”
90. The context of the present appeals, to which the nature of this court’s duty
under section 2 is therefore specific, is a line of jurisprudence in the ECtHR which
– in my respectful view – is not just wrong but incoherent. Our courts have not, to
the best of my knowledge, previously been called upon to address a context of that
sort.
91. In In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, Lord Hoffmann said:
“63. … Although people sometimes speak of the Convention
having been incorporated into domestic law, that is a
Page 40
misleading metaphor. What the [1998] Act has done is to create
domestic rights expressed in the same terms as those contained
in the Convention. But they are domestic rights, not
international rights. Their source is the statute, not the
Convention. They are available against specific public
authorities, not the United Kingdom as a state. And their
meaning and application is a matter for domestic courts, not the
court in Strasbourg.
64. This last point is demonstrated by the provision in
section 2(1) that a court determining a question which has
arisen in connection with a Convention right must ‘take into
account’ any judgment of the Strasbourg court. Under the
Convention, the United Kingdom is bound to accept a
judgment of the Strasbourg court as binding: article 46(1). But
a court adjudicating in litigation in the United Kingdom about
a domestic ‘Convention right’ is not bound by a decision of the
Strasbourg court. It must take it into account.”
92. I reluctantly agree with Lord Reed, for the reasons he gives in paras 183 to
191 below, 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. It follows that I am at present not persuaded by the ingenious suggestions to the
contrary made by Lord Mance in paras 61 to 71 above and by Lord Hughes in paras
128 and 129 below.
93. But I have come to the conclusion that this court should not adopt the
meaning ascribed to article 6(2) by the ECtHR. I have been driven to the view that
it should today dismiss the appeals.
94. (a) I hold in high professional regard our fellow judges in the ECtHR.
(b) I appreciate the desirability of a uniform interpretation of article 6(2)
throughout the states of the Council of Europe.
(c) I regard as over-optimistic the suggestion of the Secretary of State that
there is room for further constructive dialogue between this court and the
ECtHR about the extent of the application of article 6(2).
(d) I recognise the likelihood that the appellants could successfully apply
to the ECtHR for a ruling that section 133(1ZA) violates article 6(2).
Page 41
(e) But I regard myself as conscientiously unable to subscribe to the
ECtHR’s analysis of the extent of the operation of article 6(2) and thus to
declare to Parliament that its legislation is incompatible with it.
LORD HUGHES:
95. Narrowly stated, the question raised by the present appeals is whether the
new section 133(1ZA) Criminal Justice Act 1988 is incompatible with article 6(2)
of the European Convention on Human Rights (the presumption of innocence). That
question can, however, only be answered in the context of the true scope of the
presumption of innocence, which arises also in many other legal scenarios. This is a
matter with which the Strasbourg court has been obliged to grapple over the past 30
years. The presumption of innocence is also central to the approach of all three UK
jurisdictions to the criminal law, as it is to a great many other legal systems.
96. Article 6(2) provides:
“Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.”
97. There is no doubt that this governs the investigation of, and the trial of,
criminal charges. Centrally, it means that the burden of proof in a criminal trial lies
upon the prosecution to show that the accused is guilty rather than upon the accused
to show that he is not. In most if not all European systems that rule is associated
with a requirement that proof of a criminal offence must achieve a high standard
before a defendant can be convicted – usually described as proof beyond reasonable
doubt.
98. There is no occasion to examine this central core of article 6(2), which is not
in issue in the present case. What is in issue arises, not for the first time, not from
the plain meaning of a Convention right, but from the manner in which it has been
extended, by way of judicial gloss, beyond the investigation and trial of criminal
offences to legal situations where no charge remains pending and no trial is in
contemplation. This gloss is referred to in the Strasbourg jurisprudence as the
“second aspect” of article 6(2). Like other judicial glosses, this one has developed
piecemeal. That is often the result of iterative consideration of individual cases, but
that process needs also to provide the opportunity to stand back and to examine the
logical and jurisprudential basis for the steps which have been taken.
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The “second aspect” of article 6(2) in the Strasbourg jurisprudence
99. It appears from the Grand Chamber’s recent formulation of this “second
aspect” of article 6(2) in Allen v United Kingdom (2013) 63 EHRR 10, that it has
the features here set out.
(a) By the time there is any occasion for this second aspect to arise, no
one is, by definition, facing any criminal charge. It follows that although it is
well understood that the concept of a criminal charge is, as used in the
Convention, an autonomous one, its autonomous meaning has no relevance
to the second aspect (para 96).
(b) The general aim of the second aspect is “to protect individuals who
have been acquitted of a criminal charge, or in respect of whom criminal
proceedings have been discontinued, from being treated by public officials
and authorities as though they are in fact guilty of the offence charged.” It is
a protection of the reputation of the former accused. This is said to be
necessary if the right guaranteed by article 6(2) is not to become theoretical
and illusory (para 94). In summary:
“the presumption of innocence means that where there has been
a criminal charge and criminal proceedings have ended in an
acquittal, the person who was the subject of the criminal
proceedings is innocent in the eyes of the law and must be
treated in a manner consistent with that innocence. To this
extent, therefore, the presumption of innocence will remain
after the conclusion of criminal proceedings in order to ensure
that, as regards any charge which was not proven, the
innocence of the person in question is respected.” (para 103)
(c) 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. That link “is likely” to exist when the subsequent
proceedings require examination of the prior criminal proceedings. This in
turn “is likely” to be the case if any of four situations applies: (i) the court is
obliged to analyse the criminal judgment; (ii) it has to engage in a review or
evaluation of the evidence in the criminal file; (iii) it has to assess the
applicant’s participation in some or all of the events leading to the criminal
charge; or (iv) it has to comment on the subsisting indications of the
applicant’s possible guilt (para 104).
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(d) Where the second aspect of article 6(2) thus applies, there is no single
test for whether it has been infringed in the subsequent proceedings (para
125). But “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)” (para 126).
Issues common to different legal questions
100. The central reality which has to be addressed by any legal test for the scope
of article 6(2) is that the same factual issues which have to be decided in a criminal
trial or investigation in order to reach a verdict of guilty or not guilty, or a decision
as to prosecution, may also have to be decided for other legal purposes. Those other
legal purposes may well involve the person who was the accused in the criminal trial
or investigation. The other legal purposes may be sequential to the criminal trial or
investigation (for example an application for costs) or they may be separately
constituted (for example professional disciplinary proceedings against the accused
or child care proceedings concerning his children). Some legal systems may
adjudicate upon those other legal purposes in combined criminal and civil
proceedings, by permitting the complainant in the criminal trial also to make a claim
for compensation as a civil party; other systems may adjudicate upon them
separately.
101. It is an axiomatic feature of some legal systems that the law recognises that
the enhanced standard of proof required to justify conviction of a criminal offence
and punishment by the state does not apply except to the verdict of guilty or not
guilty. Elsewhere, the standard of proof is lower, often on the balance of
probabilities. There is a well-understood principled basis for this difference. In
criminal proceedings the chief object is the punishment of the guilty. Where the state
seeks against an individual a conviction and punishment the individual is entitled to
the benefit of a reasonable doubt: thus acquittal may well be in dubio pro reo, rather
than involve a positive finding that the act alleged was not performed. That this
should be so is a proper reflection of the gravity of a criminal conviction. Where, on
the other hand, the issue arises between citizens of equal standing before the law,
the object is not punishment but compensation or vindication and it unfairly
constrains the rights of the claimant if he can succeed only if all reasonable doubt is
eliminated. Likewise, the object of professional disciplinary proceedings differs
from that of criminal proceedings; where the objective is the protection of the public
from unsuitable practitioners it is legitimate and principled to give that protection
where it is demonstrated to be more likely than not that it ought to be provided. A
fortiori, where the object of proceedings is the protection of the vulnerable, typically
but not only children, the criterion for decision is the best interests of the vulnerable
and to limit protective orders to cases where maltreatment has been proved beyond
reasonable doubt would be inconsistent with that ruling principle.
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102. The three legal systems operating in the United Kingdom all depend upon
this marked and principled difference between proof beyond reasonable doubt as a
minimum for conviction and punishment and proof on the balance of probabilities
in most other areas of adjudication. So do some other European systems, for example
Norway: see Reeves v Norway (Application No 4248/02), 8 July 2004 and Orr v
Norway (Application No 31283/04), 1 December 2008. The distinction between the
two standards of proof may not be as clearly acknowledged in some other European
systems (see for example the discussion by Kaplow (2012) 121 Yale Law Journal
738) but it is of course well understood and explained by the Strasbourg court in,
for example, Orr v Norway at para 26.
103. Once the difference in standard of proof is recognised, it is plain that those
proceedings to which the civil standard apply simply cannot be governed also by the
criminal standard, nor thus by the verdict of the criminal court, even if the same
factual issues arise, and even if the evidence is the same. Discussions about the scope
of article 6(2) must necessarily accommodate this fact.
The Strasbourg jurisprudence in more detail
104. The summary of the Strasbourg jurisprudence helpfully set out in Allen v
United Kingdom (see para 99 above) might suggest an established and consistent
two-stage approach. First, that the concept of link is the test for the applicability of
article 6(2) to proceedings. Second, that whilst there is no single test for whether, if
applicable, that article is infringed, the critical question is whether the unconvicted
accused is treated by a court or public body as if guilty and the language used will
generally be of critical importance. The history shows that this is not quite how the
cases have proceeded. It demonstrates that the court has grappled frequently with
the inevitable tension between the desire to protect an unconvicted accused from
having his acquittal undermined and the reality that the outcome of the criminal trial
cannot govern all adjudication upon the same factual issues.
105. The concept of link was not articulated in the early cases, and certainly not
in the detailed terms now enunciated in Allen. That is perhaps because the early
cases concerned claims for costs and/or compensation for detention on remand in
systems such as Germany and Austria where those claims fell to be determined by
the criminal courts, indeed sometimes by the same constitution which returned a
verdict of guilty or not guilty. Minelli v Switzerland (1983) (Application No
8660/79) is an example, where the criminal court, in acquitting the accused, on the
grounds of expiry of the relevant limitation period, also in the same judgment
apportioned costs as between the private prosecutor and the accused. It took the view
that both were partially at fault. As to the accused, it expressed the view that
although he had a limited justified complaint against the prosecutor, the terms in
which he had expressed it would have left him in all probability guilty of the criminal
Page 45
libel alleged, but for the limitation period. It was enough for the Strasbourg court to
say that at the time when these conclusions were expressed the accused was still
“charged with a criminal offence” (para 32).
106. The next stage was a trio of German cases, all decided on the same day in
1987: Lűtz v Germany (1988) 10 EHRR 182, Nölkenbockhoff v Germany (1988) 10
EHRR 163 and Englert v Germany (1991) 13 EHRR 392. All were cases in which
the criminal proceedings had been discontinued, in Lűtz because a limitation period
had expired, in Nölkenbockhoff because the accused had died whilst appeal against
conviction was pending, and in Englert because the much-convicted accused was
not likely to receive a significant addition to a sentence he was already serving. In
each case, the local court, exercising a discretion plainly given to it by domestic
legal rules, had declined either in whole or in part to make orders for costs and/or
compensation for detention on remand. In each case the court had ruled in making
that decision either that the accused would “almost certainly” have been convicted
but for the technical bar which led to discontinuance (Lűtz and Nölkenbockhoff) or
was “clearly more likely” to have been convicted and had brought suspicion on
himself (Englert). As in Minelli, the Strasbourg court referred to the fact that the
decision on discontinuance accompanied that on costs etc, which it described as a
consequence and necessary concomitant of the former (eg Lűtz para 56). It then held
as to infringement that such costs or compensation issues “might raise an issue under
article 6(2) if supportive reasoning, which cannot be dissociated from the operative
provisions, amounts in substance to a determination of the accused’s guilt”: Lűtz
para 60, repeated in the other cases. In all these cases, nevertheless, the court held
that the language used had not infringed article 6(2) because it amounted to no more
than voicing outstanding suspicion that the accused had committed the offences,
rather than amounting to a finding of guilt (Lűtz para 62, echoed in the other cases).
That would appear to have been a plain recognition of the fact that to say of an
accused that he might have committed the offence, or even that he probably did, is
not to undermine his acquittal, and does not amount to attributing guilt to him. That
is even more clearly the case in systems such as the English where an acquittal
means no more than that guilt has not been proved to the high criminal standard,
may well leave open the possibility that the accused might have committed the act,
but establishes once and for all that he is unconvicted and cannot be punished.
107. The origins of the concept of link, as adumbrated in due course many years
later in Allen, may be the two cases of Sekanina v Austria (1993) 17 EHRR 221 and
Rushiti v Austria (2001) 33 EHRR 56. Both concerned applications by accused who
had been acquitted at trial for compensation for detention on remand. The domestic
law provided that compensation was payable if the accused was acquitted “and the
suspicion that he committed the offence is dispelled”. The local courts had held that
despite acquittal, suspicion had not been dispelled; there had been a strong case, but
the evidence had not been enough to convict. The Strasbourg court held both that
article 6(2) applied and that it had been infringed. It held that although the court
Page 46
determining the compensation issue had done so some months after the acquittal,
nevertheless “Austrian legislation and practice link the two questions … 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.” (Sekanina para 22,
repeated in Rushiti). Although, as has been seen, the word “concomitant” had also
appeared in the three German cases, there is nowhere any analysis of why it is
appropriate. It may well be that the decision upon those issues could properly be
described as sequential to the verdict, in the sense that a verdict of acquittal was a
sine qua non of it, but it does not follow that it was a concomitant or had to run with
the verdict; on the contrary the fact that the legal test was different surely meant that
it did not run with the verdict. To say that article 6(2) made it run with the verdict
would be to assume what was sought to be shown.
108. Sekanina and Rushiti also broke new ground on the question of infringement.
At paras 27 and 30 of Sekanina the court distinguished the three German cases,
where the language used had been rather more forthright than in the instant case; it
had spoken of it being nearly certain that the accused would have been convicted,
rather than of suspicion not having been dispelled. The court held that the approach
of the German cases to what had there been regarded as a recording of suspicion
only applied to discontinuance cases and not to acquittals. At para 30 it said this:
“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.”
It is not immediately obvious why this should be so. There no doubt is a difference
between discontinuance and acquittal, especially in systems (such as the English)
where the first may sometimes be no bar to resumption of prosecution whereas the
second virtually always is. But if the governing principle is the presumption of
innocence in article 6(2) there seems no reason why that presumption should apply
any the less to a person against whom a prosecution has been discontinued than to
one who has been acquitted after trial. Both are equally entitled to claim that they
cannot be convicted until proved guilty according to law. The reasoning in Sekanina
and Rushiti is thus perhaps rather more pragmatic than dependent on the principle
of the presumption of innocence. At all events, it is completely unexplained, either
in these cases or later, and accordingly its frequent repetition since adds nothing to
it.
109. Since then the link proposition has indeed been oft repeated, generally in
identical language, up to and including in Allen. But at no stage has the court gone
back to principle to examine what the true scope of article 6(2) is, given the differing
Page 47
legal contexts in which the same facts may be adjudicated upon according to
different tests and subject to different standards of proof. Nor are the cases
consistent. In Moullet v France (Application No 27521/04), 13 September 2007, the
court held that article 6(2) did not apply to disciplinary proceedings taken against a
public official for bribery, although he had been acquitted (on limitation grounds)
of that offence by the criminal court. It also held that in any event there was no
breach, although the act of bribery in question in each set of proceedings was
identical and his dismissal was explicitly grounded upon it. But in Vanjak v Croatia
(Application No 29889/04), 13 January 2010 and Šikić v Croatia (Application No
9143/08), 15 July 2010 disciplinary proceedings against policemen were held to be
linked to criminal prosecutions which had been abandoned, so that article 6(2) did
apply; there is no sign that Moullet was referred to.
110. The test for applicability appears, if anything, to have widened, since as the
court recorded in Allen at para 102, these two cases of Vanjak and Šikić contain the
opinion that following discontinuation of criminal proceedings (as well as following
acquittal) the presumption of innocence requires that the lack of a person’s criminal
conviction be preserved “in any other proceedings of whatever nature”. These very
wide words are not further reasoned, nor is the apparent departure from the German
and Austrian cases explained, and in neither case was the statement necessary to the
decision since the applicant failed in both cases on the grounds that the constituent
elements of the disciplinary or employment complaints differed from the legal
ingredients of the criminal charges which had been discontinued.
111. There is no doubt that there are relatively recent decisions in the Strasbourg
court which, if their approach to article 6(2) were applied to the present case, would
result in a finding that section 133(1ZA) is incompatible with that provision. An
example is Capeau v Belgium (2008) 46 EHRR 25. The accused had been
investigated for suspected arson but discharged by the court on the grounds that
there was insufficient evidence to commit him for trial. He claimed compensation
for pre-trial detention on remand. Under the local law, there was a right to such
compensation either if the accused was “exculpated” by the criminal court (which
he had not been) or if he established his innocence. The local law illustrates the
variation across Europe of entitlement to compensation for pre-trial detention on
remand. The Belgian court refused the application for compensation on the grounds
that the accused had not established his innocence. The Strasbourg court held that
to refuse compensation could not by itself amount to a breach of article 6(2) but that
the requirement that the accused prove his innocence did so. It concluded that this
provision “allowed doubt to attach itself to the correctness of the court’s decision”.
But that last statement is surely not accurate. To say that someone has not proved
himself eligible within the rules for compensation for detention is not, in any
meaningful sense, the same as doubting the correctness of a decision that there was
insufficient evidence to commit him for trial. Like some other general statements
appearing in the article 6(2) cases, it demonstrates a reluctance to address the
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meaning of acquittal. It may be that in some legal systems an acquittal, and a fortiori
a decision not to commit for trial, is a finding of positive exoneration, but in most it
is not. It is especially unlikely to be so where the verdict is that of a jury which
returns a binary verdict but does not deliver a judgment making individual findings
of fact.
112. In Műller v Germany (Application No 54963/08), 27 March 2014 the
claimant was a life sentence prisoner after shooting his wife. He had sought early
conditional release. He had recently been charged with assaulting and injuring
another woman with an electric truncheon whilst on home leave, but the local
criminal court had dismissed the charge without giving reasons. The execution of
sentence court, fulfilling a role similar to that of the Parole Board in England,
refused his application for conditional release on the grounds that he remained a
serious risk to the public and particularly to women. He had become obsessed both
with his wife and with the recently-injured woman, and injuries had followed
disappointment. The execution of sentence court had additional psychiatric
evidence, but it specifically addressed the recent allegation of assault against the
second woman, and explicitly disagreed with the criminal court, which it held had
not adequately examined the evidence against the accused. It said in terms that “the
criminal offence which the applicant had committed” towards the recent
complainant woman, demonstrated the risk of violence. The Strasbourg court
faithfully applied the general statement made in Allen and found in consequence that
there was a sufficient link between the acquittal and the decision on conditional
release. But it held that there was no breach of article 6(2): the execution of sentence
court had not, it held, stated that the accused was guilty of a fresh offence. Rather it
had based its conclusion on the prognosis of risk for the future. It must be said that
this obviously correct outcome was reached in the teeth of the words used by the
execution of sentence court. Certainly it had based its conclusion, correctly, on the
prognosis of risk for the future, but it had arrived at that prognosis in large part
because it expressed itself satisfied that the accused had committed the recent
offence of which he had been acquitted. A set of principles which requires such
specialised reasoning in order to justify an obviously correct conclusion that the
assessment of risk involved no breach of article 6(2) puts in issue the basis of the
principles.
113. This case is a remarkable illustration of the consequences of the wide
propositions which have developed in the court’s jurisprudence as to article 6(2). It
might be thought axiomatic that the assessment of the future risk posed by a
convicted murderer whose conditional release is under consideration ought to be
informed by all relevant information, and that to exclude material because it reveals
the possibility of a criminal offence simply because there is not sufficient evidence
to prove it beyond reasonable doubt is to court danger to the public. The much more
logical basis for the outcome of the case is surely that a presumption of innocence
has no place in such risk assessment. Article 6(2) has no application, for conviction
Page 49
and punishment are not in question. This is so even if on a different legal test and
applying a different standard of proof, a conclusion is reached which includes a
finding that acts amounting to an offence are relevant to that assessment. The
accused in this case was not treated by the legal system as convicted of the alleged
recent offence, nor was he punished for it. He was simply assessed as to the risk
which he presented.
114. The legal scenario which perhaps most plainly exposes the debate about the
scope of article 6(2) is the civil claim for compensation made by a person who is or
was a complainant in a criminal trial against the person who is or was the accused.
It will of course sometimes be true that the legal constituents of the tort alleged are
less exacting than those of the criminal offence (compare the disciplinary cases of
Vanjak and Šikić mentioned in para 109 above). In other cases the issue in the
criminal trial may be different because a defence is raised, such as mental disorder,
which does not apply to a tort claim. But often the issues will be identical, and
frequently the evidence relied upon will also be the same. A classic example is the
claim by someone who says that she was raped by the accused. His case is either
that the intercourse alleged did not take place or, more often, that it was consensual
and/or that consent was to be implied from the complainant’s behaviour. He has
been acquitted by the jury so it is known that the criminal standard of proof has not
been achieved, but in the civil proceedings the standard is the balance of
probabilities. Such cases are by no means unusual. Equally common, if not more so,
are cases where a care order is sought by the Local Authority in relation to children
(section 31 Children Act 1989). The test for such an order is that the child is at risk
of significant harm attributable to inadequate parental care. There may be many
different parental inadequacies relied upon, but a very common instance is the case
which depends on an alleged risk of abuse, physical or sexual, by a parent or an
associate of a parent, and where the risk is said to be proved by past abuse of this or
another child. Such an alleged abuser may well also be prosecuted. If he is acquitted,
on the criminal standard of proof, it is nevertheless incumbent on the family judge
to investigate the allegation of past abuse in order to reach a conclusion about the
level of future risk. All experienced care judges are familiar with such cases, and
with the duty to find, one way or the other, on the balance of probabilities, whether
the past abuse is made out despite acquittal in the criminal court.
115. The treatment of such cases by the Strasbourg court cannot be described as
consistent. OL v Finland (Application No 61110/00), 5 July 2005 is indeed a
decision that article 6(2) did not apply to child care proceedings in which one of the
strands of evidence advanced concerned an allegation against the father of sexual
abuse, although the prosecutor had decided not to prosecute, taking the view that the
evidence was insufficient. It is perfectly true that this decision contains the
proposition that article 6(2) was not applicable and that there was no link between
the two sets of proceedings because the care case was “not a direct sequel” to the
criminal decision. But in that case, although the psychiatrist’s report had concluded
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that in all likelihood the father had abused his daughter, all that the care court had
said was that “it is unclear whether [the child] has been subjected to sexual abuse.
This possibility cannot be excluded.” It had then gone on to record other bases for
making the care order, including the disturbed behaviour of the child and the mental
illness of her mother which impeded her care. If the decision as to applicability
meant that the Strasbourg court took a consistent line that article 6(2) had no
application to claims for civil compensation, or to care proceedings, that would be
one thing. But it is clear that it does not.
116. In Ringvold v Norway (Application No 34964/97), 11 May 2003, the court
held that article 6(2) was not applicable to the civil claim for compensation made by
a victim alleging sexual abuse by an erstwhile accused who had been acquitted by
the jury. It based that applicability decision in part on an absence of link (para 41)
but held that this was because the outcome of the criminal proceedings was “not
decisive” for the civil claim. This was to use link in an entirely different sense from
the way in which it is explained in Allen at para 104. The court also based its
applicability decision upon the language used in determining the civil claim (para
38). Yet it concluded that there was no applicability notwithstanding that the court
had held that “on the balance of probabilities it was clear that [the erstwhile accused]
was the abuser” (para 19).
117. Then a year later in Reeves v Norway (Application No 4248/02), 8 July 2004,
the accused had been tried in the criminal courts for arson and the insurers who had
paid out after the fire had been joined as civil parties to claim compensation from
her. The standard of proof differed between the two decisions required, just as it
would in separate proceedings in England. She was convicted at trial but on appeal
her conviction for arson was quashed, on the grounds that there was not the specific
majority of appeal judges which was required by local law before it could be upheld.
The award of damages to the insurers was however upheld, since enough of the
judges agreed that arson had been proved against her on the balance of probabilities.
The Strasbourg court held that there was no infringement of article 6(2). But this
time it made the assumption that article 6(2) applied to the insurers’ claim. It also
found that the judgment of one judge who acquitted the appellant of the crime but
found that on the balance of probabilities “there was a clear probability that the
defendant is guilty of setting the fire as described in the indictment” was at risk of
infringing article 6(2) and could be saved from doing so only by treating the choice
of words as “an unfortunate slip” rather than as an affirmation imputing criminal
liability for arson. So this decision depended not on applicability, as in Ringvold,
but on whether there was infringement. The decision appears to be a good example
of the unsatisfactory manner in which the language used may be determinative of
whether there is a breach of article 6(2), as propounded in Allen.
118. Those decisions can conveniently be considered alongside Orr v Norway
(Application No 31283/04), 15 May 2008, where the opposite result ensued. The
Page 51
accused was tried for rape of a work colleague. Her civil claim for compensation for
the same rape was heard alongside the criminal trial. The jury acquitted of the crime.
Next day the judges gave judgment for the complainant upon her civil claim. The
applicable standards of proof differed, as they would in England, and the civil claim
demanded a significantly less exacting standard, even if perhaps not a simple
balance of probabilities. Giving judgment on the civil claim, the court held that on
the relevant standard it was “clearly probable” that the accused had intercourse with
the complainant, that it was without her consent, that he knew that it was, and that
he had used sufficient force to overcome her lack of consent. The Strasbourg court
did not treat a link between the criminal and civil proceedings as the test of whether
article 6(2) applied or not; indeed it held that the fact that the two issues were tried
together did not bring the civil part within the article. But it held that the language
used did render article 6(2) applicable, and that it involved an infringement. At para
51 it held:
“51. However, the court notes that, in its reasoning on
compensation, the High Court majority based its finding that
the applicant was liable to pay compensation to Ms C on a
description of the facts giving details of such matters as the
nature of the sexual contact, the applicant’s awareness of the
absence of consent by Ms C, the degree of ‘violence’ (‘vold’)
used by him to accomplish the act and his intent in this respect.
In other words, it covered practically all those constitutive
elements, objective as well as subjective, that would normally
amount to the criminal offence of rape under article 192 of the
Penal Code. It is true that, as stated in the case law quoted
above, an acquittal from criminal liability does not bar a
national court from finding, on the basis of a less strict burden
of proof, civil liability to pay compensation in relation to the
same facts. However, the court considers 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 (see Y, cited above,
para 46).”
This is another good indication of the semantic examination which appears to be the
basis of Strasbourg’s decisions on the ambit of article 6(2).
119. If, now, scenarios of this kind are tested against the Grand Chamber’s
statements of principle in Allen at para 104 – for which see para 99(c) above – it
would seem likely if not inevitable that article 6(2) would now be held to apply to
such a civil claim for damages by a rape complainant, whether heard alongside the
criminal trial or separately as it would be – and is – in any of the UK jurisdictions.
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The same would apply to care proceedings in which the issue was an allegation of
abuse made against an acquitted accused. The judge trying such a civil claim, or
such a care case, may well have to examine the evidence on the criminal file. He
will certainly have to assess the accused’s participation in the events leading to the
criminal charge. However, if article 6(2) really does apply to such a claim it is simply
impossible for the judge in either kind of proceeding to give judgment after the
accused has been acquitted. Semantic adjustment of his judgment is not an option.
He has to make findings about the conflicting evidence on what occurred. He has to
do so both for civil liability and to assess the level of damages. And the care judge
must make findings of fact in order to justify his conclusion as to the risk of
significant harm which the child faces. Neither can do other than make findings
about whether the rape, or the abuse, took place. It matters not an ounce whether the
judge calls it rape, or forced sexual intercourse, or abuse, and he cannot call it
something which it is not. In a tort claim the tort about which he must make a finding
is co-terminous in most cases with the crime; even any plea of implied consent will
correlate essentially with the criminal defence of reasonable belief in consent. In a
care case, it is facts constituting criminal offences which justifies the making of the
care order. If article 6(2) does indeed apply to such proceedings, complainants, or
public care authorities, might well consider themselves better served by not making
a complaint to the police. Such allegations are notoriously difficult for juries to
decide, unless there is some independent evidence beyond the word of the only two
people typically present. If article 6(2) applies, an acquittal, always a possibility,
will bar a finding of rape in a subsequent civil case, and thus bar the claim for
compensation, and similarly with a care decision. In the absence of a prosecution,
article 6(2) would presumably become irrelevant. But the public interest is
unequivocally in cases of this kind being properly investigated by the police, and, if
the evidence offers a reasonable prospect of conviction, in their being brought to
trial.
120. The present case is not of course one of a civil claim for damages coming
after a criminal prosecution. But consideration of such a case, together with the plain
difficulties which have attended the Strasbourg court’s conscientious efforts to
extend the applicability of article 6(2), demonstrates that article cannot sensibly
apply beyond the criminal trial and the investigation which precedes it. The
objective of not undermining an acquittal which underlies the suggested gloss on
article 6(2) – see para 99(b) above – can and should properly be maintained but it
means that the acquitted accused must be recognised as unconvicted, immune from
punishment by the state and from characterisation as a criminal, but not that he
escapes all consequences of the ordinary application of his country’s rules as to
evidence and the standard of proof outside criminal trials. Powerful pleas to that
effect by Judge De Gaetano in both Ashendon and Jones v United Kingdom (2012)
54 EHRR 13 and Allen, and by Judge Power in Bok v The Netherlands (Application
No 45482/06), 18 January 2011, properly reflect the correct analysis of article 6(2).
Page 53
121. This analysis of the scope of article 6(2) is, moreover, consistent with:
(i) the wording of the article, which applies it to persons “charged with a
criminal offence”; it is irrelevant that that expression has an autonomous
meaning under the Convention since everyone agrees that the suggested
“second aspect” of, or gloss upon, article 6(2) applies it to those who are not
charged in any sense with a criminal offence;
(ii) the marked and plainly deliberate difference made by the drafters of
the Convention between article 6(1) (the determination of civil rights and
obligations) on the one hand and articles 6(2) and (3) (rights of those charged
with criminal offences);
(iii) the co-existence in article 14(2) ICCPR of a right in the same terms as
article 6(2) of the ECHR with article 14(6) which gives a plainly more
restricted right to compensation for certain kinds of miscarriage of justice;
(iv) the similar co-existence of article 6(2) with the provisions of article 3
Protocol 7, which mirrors article 14(6) ICCPR;
(v) the fact that at the time article 6(2) was drafted alternative versions
which would have applied it to “everyone” or would have provided that “noone shall be held guilty” were rejected in favour of the present formulation;
(vi) the considered view of the UNHRC in WJH v The Netherlands
(Communication 408/1990 [1992] UNHRC 25) that the presumption (at
article 14(2) of the ICCPR) “applies only to criminal proceedings and not to
proceedings for compensation”; the court in Allen referred to this conclusion
but did not address it in its reasoning.
Compensation for miscarriage of justice
122. These same principles ought properly to govern instances where the erstwhile
accused bears, under the local law, an onus of proof in proceedings which are
separate from the criminal investigation and trial and in which he is at no risk of
conviction or punishment. A simple example is the accused who, following acquittal
which may well be in dubio pro reo brings an action for malicious prosecution
against the police or other accuser. Of course it may be theoretically possible for a
prosecution to be malicious even if the accused is guilty, but in most such cases it is
an integral part of the claimant’s case that he was prosecuted when not guilty and
Page 54
that the defendant knew it. Such a claimant former accused necessarily bears the
onus of proving his case, on the balance of probabilities, including his asserted
innocence. No breach of article 6(2) is or could be involved, even if a link of the
kind contemplated by Allen could be said to exist.
123. Schemes for public compensation for those who are prosecuted but acquitted
vary widely from legal system to legal system. Some systems provide for
compensation for detention on remand; others, including the English, have no such
regime. Where there is provision for compensation, the cases show that it is not
unusual for there to be some qualification to universal availability. Sometimes the
system gives the court a residual discretion to withhold compensation, as for
example did the Dutch scheme considered in Baars v The Netherlands (2004) 39
EHRR 25. Others state the grounds on which it may be refused, as did the German
scheme considered in Nölkenbockhoff. The Strasbourg court has been at pains to say
in case after case that neither article 6(2) nor any other international rule gives an
unqualified right to such compensation. The limited right which is recognised
internationally is that stated, in more or less identical terms, in article 3 Protocol 7
to the ECHR, for those states which have acceded to it, and in article 14(6) of the
International Covenant on Civil and Political Rights. This right is limited to those
whose conviction is reversed or who is pardoned, and of those only where the
reversal or pardon is on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice. So there is no right to
compensation for those who are acquitted at trial. Nor does the right extend to the
common case of a conviction quashed for error of law or of emphasis in the summing
up, or for error of law, for example as to the admissibility of evidence, during the
trial. Since the right to compensation is thus restricted, the test is plainly entirely
different from the test of guilt or innocence at trial, and from the test of safety of the
conviction on appeal. It follows, firstly, that proceedings seeking such
compensation, although they are predicated upon there having been a conviction
which has been quashed, so that a criminal prosecution with that outcome is a sine
qua non for an award, are not part of the criminal process but rather are in aid of a
distinct and limited civil right. For this reason, even if there existed a workable
concept of “link” as a test for application of article 6(2), such a link would not exist
between the quashing (reversal) of the conviction and the claim for compensation
under section 133. The latter can only be said to be “based on” the former in the
sense that the first condition of eligibility for compensation is that the conviction
has been quashed. But to say that compensation is based on the quashing is to ignore
the several other conditions of eligibility which must also be satisfied. Secondly it
follows that it is for the claimant to show that he is within the statutory test; to that
extent at least it must be common ground that he bears the onus of proof. Thirdly, it
should be clear that the presumption of innocence has simply no place in such
proceedings, for the simple reason that conviction and punishment are not in issue.
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124. It is easy to understand why section 133(1ZA) can at first sight be seen as a
reversal of the criminal onus of proof, and thus as inconsistent with article 6(2). In
reality, however, it is no such thing. By the time section 133(1ZA) comes into
consideration the erstwhile accused is by definition no longer facing any criminal
charge in any sense, whether the autonomous one applied in the Strasbourg
jurisprudence or any other. His conviction has been quashed. He is in no danger of
conviction or punishment. Nor is he in any danger of any official body treating him
as if he were still convicted or liable to punishment. All that is happening is that he
is seeking to bring himself within the (legitimately) restricted eligibility
requirements for compensation. That does not put his guilt or innocence in issue; he
remains unconvicted and unpunished whether eligible or not, and no one will be
entitled to say, if he cannot prove on the balance of probabilities that he is eligible,
that he is guilty; at most all anyone could say is that his exoneration has not
conclusively been proved. The terms of article 14(6) of the ICCPR, which section
133 seeks to implement in English law, make plain that eligibility depends on it
being conclusively shown that a miscarriage of justice has occurred. A decision that
this has not conclusively been shown is not at all the same as a finding of guilt, nor
does it in any sense undermine the quashing of the conviction. As the facts of Allen
show, a conviction may well be quashed on the grounds that it is not safe, without
any implicit or explicit finding as to guilt or innocence: see Allen at paras 127, 131-
132 and 134-135. An English lawyer might baulk at the assertion in para 127 that
the appellant in that case had not been “acquitted on the merits” since he or she
would say that a decision that the conviction is unsafe is indeed a judgment on the
merits, but the sense of the court’s judgment is clear: those adjudicating on the
question of compensation “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.” (para 134). This will be equally true whenever
a claimant, seeking compensation after the enactment by Parliament of section
133(1ZA) fails the eligibility test which it creates.
Taking account of the Strasbourg jurisprudence
125. This court’s obligation under section 2(1)(a) of the Human Rights Act 1998
is to “take into account” any judgment, decision, declaration or advisory opinion of
the Strasbourg court. Its ultimate responsibility is to arrive at its own decision on
those Convention rights which are given domestic legal effect by being incorporated
into that statute. The history of the English courts rightly demonstrates a desire if at
all possible to maintain consistency of approach with the Strasbourg court. That
desire is reflected in the general proposition that an English court “should in the
absence of some special circumstances, follow any clear and constant jurisprudence
of the Strasbourg court”: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004]
2 AC 323, para 20. I respectfully share that desire and the present judgment sets out
to take account of the Strasbourg jurisprudence in some detail.
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126. In accordance with its usual practice, the Strasbourg court has often repeated,
usually in identical language, the key propositions which are once again propounded
in Allen and which are summarised at para 99 above. To the extent that they are oft
repeated, they are no doubt “constant”. To say that they are clear is, on inspection,
much more difficult. As appears from the brief survey above they create
considerable difficulties in application, frequently leading either to inconsistent
outcomes or to over-sophisticated semantic analysis in an effort to achieve the right
result. It seems to me incumbent on this court to stand back and re-assess the a priori
assumption that has been made that the presumption of innocence, and the critical
requirement to respect acquittals or reversals of convictions, extends to preventing
any comment by any court “in any other proceedings of whatever nature” (Vanjak)
which assesses conduct which was in question also in the criminal proceedings.
Proper respect for acquittal does not require this. It requires that the erstwhile
accused is treated as acquitted, not that his conduct cannot fall for examination in
other proceedings where the test is quite different from the criminal standard of
proof.
Outcome
127. For these reasons, which substantially although not exactly overlap with
those of Lords Mance and Wilson, I would dismiss these appeals. The correct
analysis is that article 6(2) does not apply to section 133 claims for compensation.
It certainly requires that in such claims, as in any other proceedings, the reversal of
the conviction is treated as unquestioned. But it does not inject into the quite
different section 133 test a presumption that the erstwhile accused did not commit
the crime; it holds that he has not been proved to the strict criminal standard to be
guilty. Nor therefore does article 6(2) apply so as to strike down the provision in
section 133(1ZA) which makes clear that a claimant for compensation must accept
the onus of bringing himself within the eligibility criteria laid down by Parliament.
128. If, contrary to that clear view, it be held that this court is duty bound by the
Strasbourg jurisprudence to hold that article 6(2) does apply to a section 133 claim,
I would conclude with the Court of Appeal and Divisional Court below that to
require a claimant to prove his case of eligibility is not a breach of it. That is because
what article 6(2) (if it applies) preserves is the presumption of innocence in the sense
of being a person who is acquitted, unconvicted and unpunishable. “Innocence”, in
the context of the criminal law and of article 6(2), does not mean “exonerated on the
facts”; it means “unconvicted, not proved according to the governing standard of
proof, accordingly not liable to punishment, and entitled to be treated as such”. The
new section 133(1ZA) does not require the claimant to prove that he has this status.
This status (which appears to be what the courts below meant by “innocence” in a
general sense) is already a given, once the conviction has been quashed by the Court
of Appeal (Criminal Division). What the new section requires is that the claimant
prove something different and additional, viz the condition of eligibility for
Page 57
compensation under the scheme established in England and Wales. I agree that the
mere fact that the section requires exoneration as a result of a new or newly
discovered fact would not prevent it from calling for proof of innocence, or from
conflicting with the presumption of innocence, if “innocence” in the context of the
presumption meant “exonerated on the facts”. But for the reasons explained, it does
not and cannot. The difference is clearly stated by Sir Thomas Bingham MR in R v
Secretary of State for the Home Department, Ex p Bateman (1994) 7 Admin LR 175,
cited by Lord Dyson MR in the Court of Appeal below at para 49.
129. This critical distinction between “innocence” as used in article 6(2) and
exoneration on the facts might in one sense be said to be a semantic one, but if so
the Strasbourg court has emphasised time and again that language (ie semantics) is
for it the critical test of breach of article 6(2). In reality it is not a mere semantic
distinction but reflects a fundamental principle of the criminal law, namely the strict
enhanced standard of proof. It is not possible for the law simultaneously to erect a
differential and enhanced standard of proof for criminal prosecutions, and then
effectively to apply that standard not just to criminal trials but to other (indeed
maybe to all) other adjudications upon the facts which led to the prosecution. Neither
the suggested test of “link” nor the suggested test of language will work to determine
the scope of article 6(2) in the face of this difficulty.
Postscript: judgments in the Court of Appeal (Criminal Division)
130. The form of judgments in the Court of Appeal when dealing with appeals
against conviction is not the issue in the present case. It is, however, important that
that court is not constrained in giving its reasons either for dismissing an appeal or
for allowing it. I do not disagree with what Lord Mance says at paras 25-34. In
summary:
(i) the test on an appeal against conviction is whether the conviction is
safe, not whether the appellant is demonstrated not to have committed the
offence;
(ii) for this reason, it is not appropriate for the court to regard itself as
having a “discretionary power” to make a legally binding declaration of
innocence, nor for argument before it to proceed, as it seems to have done in
Hallam on the basis that it ought to consider whether to add such a declaration
to its judgment;
(iii) but as Lord Judge observed in Adams at para 251 (cited by Lord
Mance at para 30), there can be few stronger reasons for concluding that a
Page 58
conviction is unsafe than that fresh evidence demonstrates plainly that the
appellant did not commit the offence; such cases are not common but they
may occur, as for example where new DNA evidence is agreed to exonerate
the appellant;
(iv) if such cases do occur, the court ought not to be constrained in giving
its reasons for its conclusion in terms which make clear what the new
evidence shows; this will on occasions be common ground between
prosecution and defence; it would be unfair to the appellant, if this conclusion
is clear, not to state it;
(v) counsel for an appellant may sometimes submit to the court that not
only is the conviction shown to be unsafe, but that indeed fresh evidence
shows plainly that the appellant did not commit the offence; if that
submission is made, it is for the court to decide what are the true reasons for
its conclusion on the safety of the conviction and how to express them;
argument geared to a contemplated later application for compensation is not,
however, appropriate since that issue is not before the court.
LORD LLOYD-JONES:
131. I agree with the judgment of Lord Mance and therefore limit myself to some
brief observations on the position which has been reached in the Strasbourg
jurisprudence in relation to the scope of application of article 6(2) ECHR after
acquittal or discontinuance of criminal proceedings.
132. I agree with Lord Mance’s analysis of the case law of the ECtHR. For the
reasons he gives, I too would decline to follow that case law if and to the extent that
it may have gone beyond precluding reasoning that suggests that a defendant in
criminal proceedings leading to an acquittal or discontinuance should have been
convicted of the criminal offence with which he was charged.
133. In any event, I consider that the incompatibility of section 133(1ZA) with
article 6(2) is not made out. The objection to the section as amended is, as I
understand it, that it requires the Secretary of State to assess whether persons whose
convictions are quashed because of fresh evidence have established by that evidence
that they are innocent.
134. The Strasbourg case law makes clear that there is nothing objectionable in
resisting or refusing compensation on the ground that the case falls within category
(3) ie where fresh evidence renders the conviction unsafe in that, had it been
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available at the time of the trial, a reasonable jury might or might not have convicted
the defendant. See ALF v United Kingdom (Application No 5908/12), 12 November
2013. That is also apparent from Allen, a category (3) case where it was not
suggested that the case fell into a higher category.
135. It must also follow from Allen that there is nothing objectionable in requiring
a claimant seeking compensation to bring himself or herself within category (2) ie
where the fresh evidence so undermines the evidence against the defendant that no
conviction could possibly have been based upon it. This is the whole thrust of the
decision in Allen. By the same token, there can be nothing objectionable in the state
contending against such an outcome in the circumstances of a particular case.
136. Yet it seems that the line is drawn in the Strasbourg case law at requiring a
claimant to demonstrate his or her innocence ie to bring himself or herself within
category (1), where the fresh evidence shows clearly that he or she is innocent of the
crime. This is apparent from the observation in Allen (at para 133) 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 [in Mullen] of demonstrating
her innocence”.
137. The difficulty with this approach, as Lord Mance points out, is that category
(2) subsumes category (1). It is, no doubt, possible to draw a distinction between
category (1) and category (2) but I am, at present, unable to see why this should be
significant in the present context. I can see no sensible basis on which it is held
objectionable to require evidence which establishes innocence but not objectionable
to require evidence which establishes that the claimant could not reasonably have
been convicted. Moreover – and to this I attach particular importance – this specific
issue has not yet been directly addressed or decided by the ECtHR.
138. Having regard to the present unsettled state of ECtHR case law, therefore, I
am not persuaded that section 133(1ZA) is incompatible with article 6(2). It seems
to me that these are matters which require consideration by the ECtHR and which
that court will be anxious to address.
139. For these reasons I would refuse declarations of incompatibility and would
dismiss the appeals.
LORD REED: (dissenting)
140. I am grateful to Lord Mance for setting out the background to these appeals
and the issues arising.
Page 60
Issue 1: Is article 6(2) of the Convention applicable to decisions under section 133
of the Criminal Justice Act 1988?
141. The terms of article 6(2) of the European Convention on Human Rights are
set out in para 35 above. Read literally, the words “charged with a criminal offence”
might suggest that the guarantee only applies in the context of pending criminal
proceedings. But it has never been interpreted so narrowly. In the first place, the
European court long ago adopted the position that the character of a procedure under
domestic law cannot be decisive of the question whether article 6 is applicable, since
the guarantees contained in that provision could otherwise be avoided by the
classification of proceedings. The case law on article 6(1) has therefore made it clear
that the concept of a “criminal charge” has an autonomous meaning, with the
consequence that article 6(2) is applicable to proceedings which may not be
classified as criminal under domestic law, provided that they satisfy the criteria
developed in cases such as Engel v The Netherlands (No 1) (1976) 1 EHRR 647 and
Öztürk v Germany (1984) 6 EHRR 409. Secondly, it has also long been clear from
the case law of the European court that the scope of article 6(2) is not limited to
pending criminal proceedings as so defined, but extends in some circumstances to
decisions taken by the state after a prosecution has been discontinued or after an
acquittal.
R (Adams) v Secretary of State for Justice
142. The case law of the European court concerning the scope of article 6(2), prior
to the judgment of the Grand Chamber in Allen v United Kingdom (2013) 63 EHRR
10, was considered by this court in the case of R (Adams) v Secretary of State for
Justice (JUSTICE intervening) [2011] UKSC 18; [2012] 1 AC 48. The implication
of the court’s decision in that case is that article 6(2) has no application to section
133 of the Criminal Justice Act 1988 (“the 1988 Act”). The first question which
arises in this appeal is whether this court should follow that decision, as the Secretary
of State submitted, or should depart from it, as the appellants invited us to do, in the
light of the decision in Allen v United Kingdom that article 6(2) applies to decisions
taken under section 133.
143. The judgments in Adams did not differentiate clearly between the question
whether article 6(2) is applicable and the question whether it has been infringed. As
a consequence, it is difficult to be certain which of the arguments accepted by the
court were thought to bear on the former question, and which were concerned with
the latter. The fullest analysis was carried out by Lord Hope, who based his
conclusion at para 111 that article 6(2) had no “impact” on section 133 on three
arguments, which were also advanced on behalf of the Secretary of State in the
present proceedings. They can be discussed under the headings (a) lex specialis, (b)
Page 61
separate proceedings, and (c) not undermining the acquittal. It is necessary to
consider each of these in turn.
(a) Lex specialis
144. Lord Hope considered that article 6(2) and article 3 of Protocol No 7
(“A3P7”) stood in the relation of lex generalis and lex specialis respectively, so that
the maxim lex specialis derogat legi generali applied: that is to say, that where a
legal issue falls within the ambit of a provision framed in general terms, but is also
specifically addressed by another provision, the specific provision overrides the
more general one. This was, with respect, a questionable conclusion, since article
6(2) and A3P7 are concerned with different issues: article 6(2) is concerned with the
presumption of innocence, whereas A3P7 is concerned with the payment of
compensation to persons whose convictions have been quashed, and is silent about
the presumption of innocence. Since they concern different issues, they are capable
of applying cumulatively, rather than it being necessary to apply one to the exclusion
of the other.
145. Lord Hope found support for the view that the maxim applied in the speech
of Lord Steyn in R (Mullen) v Secretary of State for the Home Department [2004]
UKHL 18; [2005] 1 AC 1. Referring to article 14(6) of the ICCPR, set out in para
16 above, and to article 14(2) (“Everyone charged with a criminal offence shall have
the right to be presumed innocent until proved guilty according to law”), Lord Steyn
cited the report of the UN Human Rights Committee in WJH v The Netherlands
(Communication No 408/1990) [1992] UNHRC 25, where the Committee said at
para 6.2:
“With respect to the author’s allegation of a violation of the
principle of presumption of innocence enshrined in article
14(2), of the Covenant, the Committee observes that this
provision applies only to criminal proceedings and not to
proceedings for compensation; it accordingly finds that this
provision does not apply to the facts as submitted.”
Lord Steyn took from this that “article 14(6) is a lex specialis … [which] creates an
independent fundamental right governed by its own express limits” (para 38).
146. Whatever the merits of that view may be in relation to the ICCPR, it might
be doubted whether it is of assistance in deciding the scope of article 6(2) of the
Convention, since it depends on the Human Rights Committee’s statement that
article 14(2) of the ICCPR applies only to criminal proceedings and not to
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proceedings for compensation. Whether that is true of article 6(2) is the very
question in issue. In relation to that question, although Lord Steyn cited a number
of European cases, such as Sekanina v Austria (1993) 17 EHRR 221, which
demonstrated that article 6(2) could apply to proceedings for compensation, he
concluded at para 44 that “the European jurisprudence cited throws no light on the
question”, and that “article 14(6) of the ICCPR (and therefore section 133 of the
1988 Act), are in the category of lex specialis and the general provision for a
presumption of innocence does not have any impact on it”. This analysis might be
contrasted with that of Lord Bingham, who pointed out at para 10 that the fact that
article 6(2) was not confined to criminal proceedings, as illustrated by Sekanina,
indicated that the European court took a different approach from that taken by the
Human Rights Committee in relation to article 14(2) of the ICCPR.
147. In support of his conclusion, Lord Steyn also referred to the Explanatory
Report to Protocol No 7, prepared by the Steering Committee for Human Rights
appointed by the Council of Europe. In relation to A3P7, the report stated at para
25:
“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.”
Lord Bingham, on the other hand, observed at para 9(4) and (5) that the Explanatory
Report was prefaced with a statement that it did not constitute an instrument
providing an authoritative interpretation of the text of the Protocol; that para 25 did
not appear to be consistent with para 23, which suggested that a miscarriage of
justice occurred where there was “some serious failure in the judicial process
involving grave prejudice to the convicted person”; that the reference to “innocent”
in para 25 was to be contrasted with the absence of any such word in A3P7; that the
expressions used in the French and Spanish versions of A3P7 were not obviously
apt to denote proof of innocence; and that a standard textbook on the Convention
considered the interpretation of A3P7 put forward in para 25 to be too strict.
148. The question whether section 133 of the 1988 Act fell within the ambit of
article 6(2) of the Convention did not, however, have to be decided in Mullen. Lord
Hope returned to it in Adams. He accepted Lord Bingham’s reasons for doubting
whether Lord Steyn was right to find support for his view in the French text and in
para 25 of the Explanatory Report, and therefore took a fresh look at the issue. His
conclusion that section 133 fell outside the ambit of article 6(2) was based, as
explained above, on the view that article 6(2) was excluded from applying within
the scope of A3P7, since the latter was lex specialis relative to the lex generalis
contained in the former. In forming that view, he relied on a passage in the court’s
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judgment in Sekanina, in the section dealing not with applicability but with
compliance. After explaining that “article 6(2) does not guarantee a person ‘charged
with a criminal offence’ a right to compensation for detention on remand”, the
European court added at para 25:
“In addition, despite certain similarities, the situation in the
present case is not comparable to that governed by article 3 of
Protocol No 7, which applies solely to a person who has
suffered punishment as a result of a conviction stemming from
a miscarriage of justice.”
149. As explained above, A3P7 requires the payment of compensation to a person
who has suffered punishment as a result of a conviction which is subsequently
reversed on the ground that a new or newly discovered fact shows conclusively that
there has been a miscarriage of justice. As the court stated in para 25 of Sekanina,
the situation of the applicant in that case was not comparable to that governed by
A3P7: he was seeking compensation for having been remanded in custody pending
a trial at which he was acquitted, whereas A3P7 applies to persons who have
suffered punishment as a result of a conviction. That is all that the court said in the
relevant passage. Lord Hope, however, read more into it, stating at para 111:
“… the fact that the court was careful to emphasise in Sekanina
v Austria, para 25 that the situation in that case was not
comparable to that governed by article 3 of the Seventh
Protocol is an important pointer to the conclusion that, as Lord
Steyn put it in Mullen, para 44, article 14(6) and section 133 of
the 1988 Act are in the category of lex specialis and that the
general provision for a presumption of innocence does not have
any impact on them.”
That conclusion (with which Lord Clarke disagreed: para 230) did not follow from
Sekanina or from any other judgment of the European court, and the subsequent
judgment of that court in Allen v United Kingdom has in my opinion demonstrated
that it is incorrect.
(b) Separate proceedings
150. The second strand in Lord Hope’s reasoning concerned the relationship
between the determination of a claim under section 133 of the 1988 Act and the
antecedent criminal proceedings. He stated at para 109 that “the Strasbourg cases
show that its jurisprudence is designed to protect the criminal acquittal in
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proceedings that are closely linked to the criminal process itself”, and went on at
para 111 to distinguish “comments on the underlying facts of the case in subsequent
proceedings of a different kind, such as a civil claim for damages”. He illustrated
the point by reference to Sekanina, noting that in its judgment the court said at para
22 that the Austrian legislation and practice linked “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”. Lord Hope concluded that the system laid down by
article 14(6) of the ICCPR, and implemented by section 133, did not cross the
forbidden boundary, stating at para 111:
“The procedure laid down in section 133 provides for a
decision to be taken by the executive on the question of
entitlement to compensation which is entirely separate from the
proceedings in the criminal courts.”
151. This reasoning is also questionable. Although procedurally separate,
compensation proceedings under section 133 are nevertheless based on the quashing
of a conviction by the criminal courts, and are directed towards obtaining
compensation for harm inflicted by the state as a direct consequence of that
conviction. But for the outcome of the criminal proceedings, there could be no
compensation proceedings. In the language used by the European court, the outcome
of the criminal proceedings is therefore “decisive” for the compensation
proceedings, since it is a prerequisite of a compensation claim that the conviction
has been quashed. The time limit for bringing a claim is also directly linked to the
conclusion of the criminal proceedings: a factor which was regarded as relevant in
a series of cases concerned with compensation proceedings under Norwegian law,
such as Hammern v Norway (Application No 30287/96) (unreported) given 11
February 2003, para 43. Furthermore, the decision whether to award compensation,
even before the amendment of section 133, depended on an assessment of the
circumstances in which the conviction was quashed, based on an examination and
evaluation of the judgment of the Court of Appeal. In these circumstances, even
prior to Allen v United Kingdom, the Strasbourg case law clearly indicated that the
compensation proceedings were likely to be regarded as a sequel or, as it was put in
Sekanina, a consequence and concomitant, of the criminal proceedings, and
therefore within the ambit of article 6(2).
(c) Not undermining the acquittal
152. Finally, Lord Hope considered that a refusal of compensation under section
133, prior to its amendment, did not have the effect of undermining the acquittal in
the criminal proceedings. That conclusion is consistent with that of the European
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court in Allen v United Kingdom and later cases. However, it goes to the question
whether article 6(2) has been violated, not to the question whether it is applicable.
153. Lord Phillips and Lord Kerr agreed with Lord Hope on this topic. Lord Judge
CJ, with whom Lord Brown, Lord Rodger and Lord Walker agreed on this topic,
also treated A3P7 as a lex specialis which ousted the application of article 6(2) to
proceedings under section 133. In the present case, the courts below were therefore
correct to take the view that they were bound by Adams to hold that article 6(2) was
inapplicable.
(2) Serious Organised Crime Agency v Gale
154. Before turning to the more recent Strasbourg jurisprudence, it is also relevant
to note the case of Serious Organised Crime Agency v Gale (Secretary of State for
the Home Department intervening) [2011] UKSC 49; [2011] 1 WLR 2760, decided
by this court a few months after Adams. The case concerned the question whether
civil recovery proceedings under the Proceeds of Crime Act 2002, undertaken
following the appellant’s acquittal of criminal charges, were compatible with article
6(2). In the course of his judgment, with which a majority of the court agreed, Lord
Phillips was critical of the distinction which he perceived in the case law of the
European court between claims for compensation brought by an acquitted defendant
against the state under public law, and claims for compensation brought by an
alleged victim against an acquitted defendant under the law of tort, commenting at
para 32 that “this confusing area of Strasbourg law would benefit from consideration
by the Grand Chamber”. Lord Dyson was less critical of the Strasbourg
jurisprudence, and provided an illuminating analysis.
155. As he noted, cases in which article 6(2) was held to apply to proceedings
instituted after the discontinuation of criminal proceedings or following an acquittal
included, first, cases in which there was a sufficiently close link between the
criminal proceedings and the other proceedings to engage article 6(2), even if on an
application of the usual Engel criteria the latter proceedings would be characterised
as civil. Those cases were described in Ringvold v Norway Reports of Judgments
and Decisions 2003-II, p 117, para 36 as concerning “proceedings relating to such
matters as an accused’s obligation to bear court costs and prosecution expenses, a
claim for reimbursement of his (or his heirs’) necessary costs, or compensation for
detention on remand, matters which were found to constitute a consequence and the
concomitant of the criminal proceedings”. The focus of the inquiry was on whether
the proceedings were the “direct sequel” or “a consequence and the concomitant” of
the criminal proceedings: ibid, at para 41. As Lord Dyson stated at para 125:
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“Claims by an accused person following a discontinuation or
acquittal for costs incurred as a result of the criminal
proceedings and claims for compensation for detention are
paradigm examples of such proceedings. The link between
such claims and the criminal proceedings is so close that article
6(2) applies to both of them. The claims for compensation flow
from the criminal proceedings. But for these proceedings, there
would be no claims.”
156. As Lord Dyson explained, civil claims for compensation, brought against the
defendant under the law of tort, are not linked in that way to criminal proceedings.
The victim of a civil wrong has a right to claim damages, in order to obtain a remedy
for the harm which he or she has suffered, regardless of whether the defendant has
been convicted or acquitted of a criminal offence arising out of the same facts. The
victim’s claim is not dependent on the defendant being prosecuted at all.
Furthermore, as the court pointed out in Ringvold, para 38, if civil compensation
proceedings automatically fell within the ambit of article 6(2), that would have:
“the undesirable effect of pre-empting the victim’s possibilities
of claiming compensation under the civil law of tort, entailing
an arbitrary and disproportionate limitation on his or her right
of access to a court under article 6(1) of the Convention.”
157. A separate basis on which article 6(2) had been held to apply to proceedings
instituted after the discontinuation of criminal proceedings or following an acquittal
was that a sufficient link with the criminal proceedings was created by the language
used by the court in the civil proceedings. An example was the case of Y v Norway
(2003) 41 EHRR 87, where the civil court stated in its judgment that it found it
clearly probable that the defendant had committed the offences against the claimant
with which he was charged. The European court found that there had been a
violation of article 6(2).
158. Lord Dyson contrasted that case with Moullet v France (Application No
27521/04) (unreported) given 13 September 2007, where the applicant was a public
official who had been charged with accepting bribes. The criminal proceedings were
discontinued on the ground that they were time-barred. The official was then
dismissed on the basis that the evidence showed that he had taken bribes. That
decision was challenged under administrative law, but was upheld by the Conseil
d’Etat on the ground that it had been based on “accurate facts” and on reasons which
were not “materially or factually incorrect”. A complaint to the European court was
unsuccessful. The court considered whether the Conseil d’Etat “used such language
in its reasoning as to create a clear link between the criminal case and the ensuing
administrative proceedings and thus to justify extending the scope of article 6(2) to
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cover the latter”. It noted that the applicant was not “formally declared guilty of the
criminal offence of accepting bribes”. The Conseil d’Etat had confined itself to
determining the facts “without suggesting any criminal characterisation whatsoever
… In other words, the domestic authorities managed in the instant case to keep their
decision within a purely administrative sphere, where the presumption of innocence
the applicant relied on did not obtain”.
159. Similarly in Ringvold v Norway the court found that a domestic decision
awarding compensation to a victim of sexual abuse, following the defendant’s
acquittal, did not fall within the scope of article 6(2). Although the domestic court
had found that there was evidence “establishing that sexual abuse had occurred, and
that, on the balance of probabilities, it was clear that the applicant was the abuser”
(para 19), it “did not state, either expressly or in substance, that all the conditions
were fulfilled for holding the applicant criminally liable with respect to the charges
of which he had been acquitted” (para 38).
160. Lord Dyson commented at para 138 that the rationale of cases such as Y v
Norway must be that if the domestic court chooses to treat civil proceedings as if the
issue of criminal liability falls to be determined, then the fair trial protections
afforded by article 6(2) should be respected. But if the decision in the civil
proceedings is based on reasoning and language which go no further than is
necessary for the purpose of determining the issue before that court and without
making imputations of criminal liability, then the necessary link will not have been
created.
(3) Allen v United Kingdom
161. An opportunity for the Grand Chamber to consider this area of the law arose
soon after Gale, in the case of Allen v United Kingdom. The applicant had been
convicted of manslaughter. Her conviction was later quashed on the basis that,
although the Crown case against her remained strong, a jury which had heard the
fresh evidence might have come to a different conclusion. In terms of the categories
subsequently adopted in Adams, it was a category 3 case. Her application for
compensation under section 133 as originally enacted was unsuccessful, and her
application for judicial review of that decision was dismissed. On appeal, the Court
of Appeal held that there had been no violation of article 6(2): R (Allen) (formerly
Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R
2. As was pointed out, article 6(2) could not possibly mean that compensation
necessarily followed the quashing of a conviction on the basis of fresh evidence,
otherwise A3P7 could not be in the terms it was. More controversially, Hughes LJ,
giving the judgment of the court, expressed the view, applying dicta of Lord Steyn
in the case of Mullen, that the phrase “miscarriage of justice” in section 133 of the
1988 Act was restricted to cases where the defendant was demonstrably innocent of
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the crimes of which he had been convicted: a view which was subsequently
disapproved by the majority of this court in Adams.
162. When Allen reached the Grand Chamber of the European court, on a
complaint directed not against the Secretary of State’s decision to refuse the
applicant’s claim for compensation, but against the reasons given by the High Court
and the Court of Appeal for dismissing her challenge to that decision, the European
court was therefore considering section 133 in its unamended form. The
Government contended that the complaint was inadmissible because article 6(2) had
no application to decisions taken under section 133, as this court had held in Adams.
The question whether section 133 fell within the scope of article 6(2) was therefore
directly in issue. In deciding that question, the Grand Chamber court undertook a
careful review of the court’s case law, and considered the relationship between
article 6(2) and A3P7.
163. The Grand Chamber began its assessment by explaining the justification, in
accordance with the most fundamental principles of the Convention case law, for
giving article 6(2) a wider application than a literal reading of the text would suggest.
As it explained at para 92:
“The object and purpose of the Convention, as an instrument
for the protection of human beings, requires that its provisions
be interpreted and applied so as to make its safeguards practical
and effective.”
The need to ensure that the right guaranteed by article 6(2) is practical and effective
entails that it cannot be viewed solely as a procedural guarantee in the context of a
criminal trial, but has a second aspect (para 94):
“Its general aim, in this second aspect, is to protect individuals
who have been acquitted of a criminal charge, or in respect of
whom criminal proceedings have been discontinued, from
being treated by public officials and authorities as though they
are in fact guilty of the offence charged. In these cases, the
presumption of innocence has already operated, through the
application at trial of the various requirements inherent in the
procedural guarantee it affords, to prevent an unfair criminal
conviction being imposed. 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
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reputation and the way in which that person is perceived by the
public.”
164. The Grand Chamber reviewed how the court’s jurisprudence in relation to
the second aspect of article 6(2) had developed over time. In doing so, it did not
attempt to justify or reconcile all of the decisions on their particular facts: a task
which, in relation to some of the case law, might have been challenging. Instead, it
sought to derive from the cases the underlying principles, and to explain how they
had evolved. In some early cases in which the court had found article 6(2) to be
applicable, despite the absence of a pending criminal charge, it had said that the
judicial decisions taken following criminal proceedings, for example with regard to
an obligation to bear court and prosecution costs, or compensation for pre-trial
detention or other adverse consequences, were “consequences and necessary
concomitants of”, or “a direct sequel to”, the conclusion of the criminal proceedings.
Similarly, in a later series of cases, such as Sekanina v Austria, it had concluded that
Austrian legislation and practice “link[ed] 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 could be regarded as a consequence and, to some
extent, the concomitant of the decision on the former”, so that article 6(2) applied to
the compensation proceedings. Developing this idea in subsequent cases, such as
Hammern v Norway, the court had found that the applicants’ compensation claim
“not only followed the criminal proceedings in time, but was also tied to those
proceedings in legislation and practice, with regard to both jurisdiction and subject
matter”, creating a link between the two sets of proceedings with the result that
article 6(2) was applicable. In cases such as Ringvold v Norway and Y v Norway,
concerning the victim’s right to compensation from the applicant, who had
previously been found not guilty of the criminal charge, the court had held that
where the decision on civil compensation contained a statement imputing criminal
liability, this would create a link between the two proceedings such as to engage
article 6(2) in respect of the judgment on the compensation claim.
165. The Grand Chamber also cited its decision in OL v Finland (Application No
61110/00) (unreported) given 5 July 2005, in which an appeal was brought against
a child care order, made on the basis of a psychiatric report stating that it was highly
probable that the child had been sexually abused by her father, after the public
prosecutor decided not to bring charges. In dismissing the appeal, the domestic court
stated:
“The public care order was based on the expert opinion
resulting from the psychiatric examinations. However, it is
unclear whether A has been subjected to sexual abuse. This
possibility cannot be excluded, either. According to the
examinations it is undisputed that A has become predisposed
to sexuality, not suitable for a child of her age. It is also clear
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that living with a mentally ill mother has had negative effects
on A’s psychical development …”
The European court dismissed the father’s complaint of a violation of article 6(2) as
manifestly ill-founded, observing:
“In this particular case, although the prosecutor did not prefer
charges against the applicant, the decision to place A into
public care was legally and factually distinct. Regardless of the
conclusion reached in the criminal investigation against the
applicant, the public care case was thus not a direct sequel to
the former.”
Nor was a sufficient link between the two proceedings created by the language used
by the domestic court: “the impugned ruling of the Supreme Administrative Court
in no way stated that the applicant was criminally liable with regard to the charges
which the prosecutor had dropped”.
166. More recently, the court had expressed the view that following the
discontinuation of criminal proceedings, the presumption of innocence required that
the lack of a person’s criminal conviction should be preserved in any other
proceedings of whatever nature. It had also indicated that the operative part of an
acquittal judgment must be respected by any authority referring directly or indirectly
to the criminal responsibility of the person in question.
167. The Grand Chamber then considered the specific context of judicial
proceedings following the quashing of a conviction, giving rise to an acquittal, and
stated at para 104:
“Whenever the question of the applicability of article 6(2)
arises in the context of subsequent proceedings, the applicant
must demonstrate the existence of a link, as referred to above
[ie in the discussion of the previous case law], between the
concluded criminal proceedings and the subsequent
proceedings. Such a link is likely to be present, for example,
where the subsequent proceedings require examination of the
outcome of the prior criminal proceedings and, in particular,
where they oblige the court to analyse the criminal judgment;
to engage in a review or evaluation of the evidence in the
criminal file; to assess the applicant’s participation in some or
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all of the events leading to the criminal charge; or to comment
on the subsisting indications of the applicant’s possible guilt.”
168. The Grand Chamber next addressed the argument that article 6(2) did not
apply to section 133 of the 1988 Act because the latter fell within the scope of A3P7,
which was argued to be lex specialis: the argument accepted by a majority of this
court in Adams. The Grand Chamber had earlier mentioned the UN Human Rights
Committee’s communication in WJH v The Netherlands, which, as it noted,
proceeded on the basis that article 14(2) of the ICCPR applied only to criminal
proceedings. It also cited the Explanatory Report on Protocol No 7, including the
passages to which Lord Bingham had referred in Mullen, observing at para 133 that
the report itself provided that it did not constitute an authoritative interpretation of
the text, and adding that the report’s reference 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). It concluded at para 105:
“Having regard to the nature of the article 6(2) guarantee
outlined above, the fact that section 133 of the 1988 Act was
enacted to comply with the respondent state’s obligations under
article 14(6) ICCPR, and that it is expressed in terms almost
identical to that article and to article 3 of Protocol No 7, does
not have the consequence of taking the impugned
compensation proceedings outside the scope of applicability of
article 6(2), as argued by the Government. The two articles are
concerned with entirely different aspects of the criminal
process; there is no suggestion that article 3 of Protocol No 7
was intended to extend to a specific situation general
guarantees similar to those contained in article 6(2). Indeed,
article 7 of Protocol No 7 clarifies that the provisions of the
substantive articles of the Protocol are to be regarded as
additional articles to the Convention, and that ‘all the
provisions of the Convention shall apply accordingly’. Article
3 of Protocol No 7 cannot therefore be said to constitute a form
of lex specialis excluding the application of article 6(2).”
The lex specialis argument was therefore roundly rejected.
169. The Grand Chamber then applied the general principles set out earlier in its
judgment to the facts of Allen. It identified the relevant question as being “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 that regard, it stated at paras 107-108:
Page 72
“107. … In this respect, the court observes that proceedings
under section 133 of the 1988 Act require that there has been a
reversal of a prior conviction. It is the subsequent reversal of
the conviction which triggers the right to apply for
compensation for a miscarriage of justice. Further, in order to
examine whether the cumulative criteria in section 133 are met,
the Secretary of State and the courts in judicial review
proceedings are required to have regard to the judgment handed
down by the CACD [the Court of Appeal Criminal Division].
It is only by examining this judgment that they can identify
whether the reversal of the conviction, which resulted in an
acquittal in the present applicant’s case, was based on new
evidence and whether it gave rise to a miscarriage of justice.
108. The court is therefore satisfied that the applicant has
demonstrated the existence of the necessary link between the
criminal proceedings and the subsequent compensation
proceedings. As a result, article 6(2) applied in the context of
the proceedings under section 133 of the 1988 Act to ensure
that the applicant was treated in the latter proceedings in a
manner consistent with her innocence.”
170. The critical factors in establishing the necessary link between the decision of
the Court of Appeal in the criminal proceedings, and the subsequent proceedings
under section 133, were therefore that the quashing of the conviction was a
prerequisite of proceedings under section 133, and that in order to arrive at a decision
on the claim it was necessary for the Secretary of State to examine the judgment of
the Court of Appeal so as to determine whether the criteria in section 133 were
satisfied. That reasoning applies equally, if not a fortiori, to section 133 in its
amended form.
171. The only remaining question, therefore, in relation to the applicability of
article 6(2) to decisions taken under section 133 as amended, is whether, as counsel
for the Secretary of State submitted, this court should decline to follow the decision
of the Grand Chamber. In counsel’s submission, our doing so would encourage, or
stimulate, further dialogue where the issue could be reviewed and addressed in full.
172. This court’s approach to judgments of the European Court of Human Rights
is well established. Section 2 of the Human Rights Act requires the courts to “take
into account” decisions of the European court, not necessarily to follow them. In
taking them into account, this court recognises their particular significance. As Lord
Bingham observed in Kay v Lambeth London Borough Council [2006] UKHL 10;
[2006] 2 AC 465, para 44:
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“The Strasbourg court authoritatively expounds the
interpretation of the rights embodied in the Convention and its
protocols, as it must if the Convention is to be uniformly
understood by all member states.”
Nevertheless, it can sometimes be inappropriate to follow Strasbourg judgments, as
to do so may prevent this court from engaging in the constructive dialogue or
collaboration between the European court and national courts on which the effective
implementation of the Convention depends. In particular, dialogue has proved
valuable on some occasions in relation to chamber decisions of the European court,
where this court can be confident that the European court will respond to the
reasoned and courteous expression of a diverging national viewpoint by reviewing
its position.
173. The circumstances in which constructive dialogue is realistically in prospect
are not, however, unlimited. As Lord Neuberger of Abbotsbury MR explained in
Manchester City Council v Pinnock (Secretary of State for Communities and Local
Government intervening) [2010] UKSC 45; [2011] 2 AC 104, para 48:
“Where, however, there is a clear and constant line of decisions
whose effect is not inconsistent with some fundamental
substantive or procedural aspect of our law, and whose
reasoning does not appear to overlook or misunderstand some
argument or point of principle, we consider that it would be
wrong for this court not to follow that line.”
There is also unlikely to be scope for dialogue where an issue has been
authoritatively considered by the Grand Chamber, as Lord Mance indicated in R
(Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] AC 271, para 27:
“It would have then to involve some truly fundamental
principle of our law or some most egregious oversight or
misunderstanding before it could be appropriate for this court
to contemplate an outright refusal to follow Strasbourg
authority at the Grand Chamber level.”
174. No circumstances of the kind contemplated in those dicta exist in the present
case. The Grand Chamber’s conclusion was carefully considered, and was based on
a detailed analysis of the relevant Strasbourg case law. It was consistent with a line
of authorities going back decades. It was intended to provide authoritative guidance,
and has been followed in numerous subsequent judgments, such as Cleve v Germany
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(Application No 48144/09) (unreported) given 15 January 2015, Kapetanios v
Greece (Application Nos 3453/12, 42941/12 and 9028/13) (unreported) given 30
April 2015 and Dicle and Sadak v Turkey (Application No 48621/07) (unreported)
given 16 June 2015. It did not involve any principle of English law, or any oversight
or misunderstanding. On the contrary, it is the reasons given in Adams to support
the conclusion that article 6(2) has no application to section 133 of the 1988 Act
which, with respect, are less than compelling. The lex specialis argument is
unpersuasive, for the reasons explained at paras 144-149 above, and those set out by
the Grand Chamber at para 105 of its judgment. The “separate proceedings”
argument is equally unpersuasive, as explained at para 151 above, and at para 107
of the Grand Chamber’s judgment. That is also the implication of Lord Dyson’s
analysis in Gale, where he explained at para 125 (quoted in para 155 above) why
claims by a defendant for compensation for detention are a paradigm example of
proceedings which are sufficiently closely linked to criminal proceedings for article
6(2) to apply. The “not undermining the acquittal” argument bears on compliance
with article 6(2), not on whether it is applicable.
175. I recognise that the dicta which I have cited from Pinnock and Chester are
not to be treated as if they had statutory force. Nevertheless, they are in my view
persuasive. I find it difficult to accept that this court should deliberately adopt a
construction of the Convention which it knows to be out of step with the approach
of the European Court of Human Rights, established by numerous Chamber
judgments over the course of decades, and confirmed at the level of the Grand
Chamber, in the absence of some compelling justification for taking such an
exceptional step. For my part, I can see no such justification.
Conclusion on issue 1
176. For the reasons I have explained, I would hold that decisions taken under
section 133 fall within the ambit of article 6(2). I would therefore depart from the
decision in Adams in so far as it adopted the contrary view.
Issue 2: Is section 133(1ZA) incompatible with article 6(2)?
177. Once it has been established that there is a sufficient link between
proceedings under section 133 and the antecedent criminal proceedings, the court
must determine whether the presumption of innocence has been respected. The
approach to be adopted to this question was the second area of the law which was
reviewed by the Grand Chamber in Allen v United Kingdom.
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178. As the court observed, there is no single approach to ascertaining the
circumstances in which article 6(2) will be violated in the context of proceedings
which follow the conclusion of criminal proceedings. In particular, the court
explained in para 121 that in cases concerning applications by a former accused for
compensation or costs, where the criminal proceedings were discontinued, it had
been held that a refusal of compensation or costs might raise an issue under article
6(2) “if supporting reasoning which could not be dissociated from the operative
provisions amounted in substance to a determination of the accused’s guilt”, but that
no violation had been found where domestic courts had described a “state of
suspicion” without making any finding of guilt. In Sekanina, however, the court
drew a distinction between cases where the criminal proceedings had been
discontinued and those where a final acquittal judgment had been handed down
“clarifying that the voicing of suspicions regarding an
accused’s innocence was conceivable as long as the conclusion
of criminal proceedings had not resulted in a decision on the
merits of the accusation, but that it was no longer admissible to
rely on such suspicions once an acquittal had become final.”
In Sekanina, the domestic court rejected the applicant’s claim for compensation for
detention, saying that, in acquitting him, the jury took the view that the suspicion
was not sufficient to reach a guilty verdict, but “there was, however, no question of
that suspicion’s being dispelled” (para 29). The European court said that this left
open a doubt as to the correctness of the acquittal and was incompatible with the
presumption of innocence.
179. To give one other example, in cases involving civil compensation claims
lodged by victims, regardless of whether the criminal proceedings ended in
discontinuation or acquittal, the court had 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).
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
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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
Page 77
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
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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.
188. 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
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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.
189. 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
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before the case of Allen, and which received the approval of the Grand Chamber in
that judgment.
Conclusion on Issue 2
192. 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
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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
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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
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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.
206. 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.