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No compensation for those cleared of criminal convictions – part 2

No compensation for those cleared of criminal convictions – part 2

Charlotte Hughes

02/04/2019

It might seem that the presumption of innocence should mean that Sam Hallam and Victor Nealon – both of whom spent many years in prison because of convictions which have now been overturned – will be treated as innocent men. They have, on any account, been through an ordeal. However, it is well known that the law is lacking with regard to individuals who are the subject of a miscarriage of justice at the hands of the state, despite the incredibly damaging impact that this has on a person’s life. Both Hallam and Nealon asked for compensation to mark and go some way towards making amends for the things that went wrong in their case.  

The Supreme Court considers a long line of European Court of Human Rights (ECHR) cases on the presumption of innocence when engaging in a compensation regime, including its leading Grand Chamber judgment UK v Allen. The main issue is whether a test for awarding compensation would offend the presumption of innocence to which a person is entitled once their conviction has been quashed.

In the cases at hand, a majority of the Supreme Court justices held that Article 6(2) was not applicable, and that – even if it was applicable – the definition (which was introduced with effect from March 2014) did not infringe the presumption of innocence guaranteed by Article 6(2). The court ultimately considered that the ECHR’s jurisprudence in this area was still evolving and that it would be inappropriate to make a declaration of incompatibility in such circumstances. However, Lady Hale did comment: “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.”

The court ultimately considered that such proceedings were being brought by individuals in respect of whom the ECHR would be unlikely to find a violation (the facts of these cases being equivalent to those in Allen, in which no violation was found). The majority found that the ECHR has not yet directly addressed the issue of why it is objectionable to require evidence establishing innocence, but not that the claimant could not reasonably have been convicted. Finally, the majority found that there is desirability for a uniform interpretation of Article 6(2), and that these matters require consideration by the ECHR to provide a clear and consistent line of jurisprudence.

What has emerged from this case is that, although there is statutory provision for compensation to be paid to those found to have been wrongfully convicted and imprisoned, it is worded in such a way that compensation can virtually never be paid. Someone must prove their innocence before a payout will be considered.

The logic behind this seems to be that ‘undeserving’ claimants will end up benefiting from the system (ie, those who have – to use a colloquial phrase – ‘got off on a technicality’). On the face of it, this seems like a perfectly reasonable aim. However, it has been taken to the extreme in the current phrasing of the legislation. Those claiming compensation are being asked to prove that they did not do something. It is almost impossible to prove a negative (there’s a reason the burden of proof is the way it is), let alone that you did not do something several years after the fact. Nowhere else in English law does a person seeking compensation for a wrong have to prove their case to such a high standard.

Having failed to achieve the desired outcome, both Hallam and Nealon may now bring their arguments before the ECHR.