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No compensation for those cleared of criminal convictions - part 1

No compensation for those cleared of criminal convictions - part 1

Charlotte Hughes

07/03/2019

Last year the Supreme Court heard two appeals in relation to the award of compensation for those wrongly convicted of criminal charges. The case concerned two men whose criminal convictions were overturned after they had spent many years in prison. Sam Hallam and Victor Nealon were refused miscarriage of justice compensation and tried to argue that the recently toughened rules breached European human rights law.

The Supreme Court, by a 5-2 majority, ruled that the definition of ‘miscarriage of justice’ in Section 133(1ZA) of the Criminal Justice Act 1988 is compatible with Article 6(2) of the European Convention on Human Rights (the presumption of innocence). It provides that a miscarriage of justice which gives rise to the right to compensation occurs only when an out-of-time appeal against conviction is allowed because a new or newly discovered fact “shows beyond reasonable doubt that the person did not commit the offence”. Hallam and Nealon argued that this conflicts with the presumption of innocence.  

The scheme that awards compensation had recently been tightened to include the new (and – some would say – stringent) definition of ‘miscarriage of justice’. It seems there were fears that previously compensation was being paid to the guilty, although there was little to no evidence to support this. In the four years immediately preceding 2013, compensation payments averaged one-and-a-half people a year and no one has suggested that any of them were in fact guilty. Between 2000 and 2005, 187 people successfully applied for compensation. In the past five years, only five people received pay-outs – and not a single penny was paid last year. Hundreds of people each year have their convictions quashed; hardly any of them have been paid compensation.

Hallam had been convicted of murder. The case against him depended on identification evidence. It had always been accepted that there were weaknesses in this evidence and the jury was directed about those at trial. Hallam argued that he had an alibi but the jury did not believe him and he was convicted. His appeal was dismissed, in part because his unreliable account of his alibi was considered capable of supporting the identification evidence.

Hallam applied to the Criminal Cases Review Commission. The commission obtained his phone, which had not previously been examined, despite being available to the police. It contained a picture which, while not being quite conclusive, strongly supported his alibi. After seven years in prison, his conviction was referred back to the Court of Appeal. While the appeal was being heard, the prosecution conceded that his conviction was unsafe. The court agreed and Hallam was released.

Nealon was convicted of an attempted rape in Redditch in 1996. Again, the main evidence against him was that of identification witnesses. One of the witnesses identified Nealon after having seen him in the police station with his solicitor – in breach of guidelines. He asked for DNA testing to be done but this was not carried out by the police. He was convicted and received a life sentence, with a minimum term of seven years. Nealon also applied to the Criminal Cases Review Commission, although it was not until he had made repeated applications that DNA testing was done by an independent expert. It turned out that the complainant’s bra was stained with the saliva of an unidentified man. This corresponded with her account of how she had been attacked. Thorough testing was done to rule out the DNA of other people who may have come into contact with the garment. When the case was referred back to the Court of Appeal, the prosecution argued that the unidentified saliva stains made no difference. The court disagreed. Nealon ended up serving 17 years behind bars (he was denied parole because he refused to accept his guilt).