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

[2019] UKSC 2

Supreme Court of the United Kingdom

Lady Hale, P, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Lloyd-Jones

January 30, 2019

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Criminal Law-convictions- reversal- reversal of convictions where there are miscarriages of justice– compensation for-requirements for compensation- ground that a new or newly discovered fact had to show beyond reasonable doubt that a person did not commit the offence-claim that absence of ground goes against presumption of innocence- whether the requirement that a new or newly discovered fact had to show beyond reasonable doubt that a person did not commit the offence, in the absence of which they were unable to claim compensation, was incompatible with the presumption of innocence contained in article 6(2) of the European Convention on Human Rights (the ECHR)- Criminal Justice Act 1988, section 133 (1),(1ZA)

Statutes-interpretation of statutory provisions- section 133(1ZA) of the Criminal Justice Act 1988- miscarriages of justice -whether the definition of miscarriage of justice was incompatible with the presumption of innocence contained in article 6(2) of the European Convention on Human Rights (the ECHR)- Criminal Justice Act 1988, section 133(1ZA)

Criminal Law– fair trial-presumption of innocence-criminal proceedings-what was the place of innocence in criminal proceedings

Brief Facts:

The appeals concerned the entitlement to compensation of persons whose criminal convictions were subsequently quashed for being unsafe. The (appellants), Mr Hallam and Mr Nealon, spent, respectively, about 7 years and 17 years in prison before their convictions were eventually quashed for being unsafe in light of newly discovered evidence. They subsequently applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014) (the 1988 Act). The Secretary of State for Justice (the respondent) refused their applications on the ground that the new evidence did not show beyond reasonable doubt that they had not committed the offences.

The appellants argued that the requirement contained in section 133(1ZA) that a new or newly discovered fact had to show beyond reasonable doubt that the person did not commit the offence, in the absence of which they were unable to claim compensation, was incompatible with the presumption of innocence contained in article 6(2) of the European Convention on Human Rights (the ECHR).

Both the Divisional Court and the Court of Appeal refused to make the declarations of incompatibility sought. The appellants then appealed to the Supreme Court seeking a declaration of incompatibility under section 4 of the Human Rights Act, 1998.

Issues:

i    Whether the requirement contained in section 133(1ZA) of the 1988 Act that a new or newly discovered fact had to show beyond reasonable doubt that a person did not commit the offence, in the absence of which they were unable to claim compensation, was incompatible with the presumption of innocence contained in article 6(2) of the European Convention on Human Rights (the ECHR).

ii    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 was incompatible with the presumption of innocence contained in article 6(2) of the European Convention on Human Rights (the ECHR).

iii   What was the place of innocence in criminal proceedings?

Relevant Provisions of the Law

Criminal Justice Act, 1988

Section 133-Compensation for miscarriages of justice

(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

(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).]

(2)No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State

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

European Convention on Human Rights, 1950

Article 6(2) – Right to a fair trial

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Held:

Lord Mance: (Lord Lloyd-Jones concurring)

1.  Innocence as such was not a concept known to the criminal justice system. It distinguished between the guilty and the not guilty. A person was only guilty if the state could prove his guilt beyond reasonable doubt. It was equally not the function of the Court of Appeal Criminal Division (the CACD) on an appeal (or on a reference by the Criminal Cases Review Commission, which was by statute treated as an appeal) to determine whether the appellant did or did not commit the offence. The question for the CACD was whether the conviction was unsafe. Section 2(1) of the Criminal Appeal Act 1968 provided that the CACD would allow an appeal if they thought that the conviction was unsafe. The court was then required by section 2(2) to quash the conviction. Section 2(3) provided that an order quashing a conviction would, except where a retrial was 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 was therefore in the same position for all purposes as if he had actually been acquitted.

2.  Although there were some cases in which the court could state in its judgment that the appellant had been exonerated, it was not the purpose of the appeal proceedings to determine whether that was the position, and in the great majority of cases the court did 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 had been exonerated did not therefore carry any implication concerning the appellant’s innocence.

3.  The CACD did not possess any power to make formal findings or declarations of innocence. It was not the CACD’s role to determine whether the appellant was factually innocent. The question which it determined was whether the conviction was unsafe. When giving its decision on that question, the court would necessarily explain the reasons for its decision. What it was appropriate to say in that regard would depend to a large extent on the circumstances of the case. In practice, it was often necessary to carry out an assessment of the strength of the evidence as a whole, both inculpatory and exculpatory. If the court considered that the evidence plainly exonerated the appellant, then it was entitled to say so when giving its reasons for allowing the appeal. Sometimes the Crown would have accepted that that was so, and in that event the judgment would normally record that stance. In other cases the significance of the fresh evidence was contested, and in that event the court generally confined itself to the issue of safety.

4.  The significance of acquittals should not be degraded by the introduction of a practice of distinguishing in a criminal context between those who were factually innocent and those who merely benefitted from the legal presumption of innocence: a distinction which section 133, in its amended form, could have the understandable but unfortunate effect of encouraging successful appellants to ask the CACD to draw. Cases in which the CACD expressed the view that an appellant was innocent should remain very rare. No adverse inference should be drawn from the court’s unwillingness to express such a view. The application of section 133 was for the respondent, not for the CACD quashing the conviction.

5.  A defendant seeking compensation after the setting aside of his or her conviction by the CACD could therefore be required to show that the circumstances were not merely such that his conviction was unsafe. The circumstances had to be shown to fall within a higher category, which had to necessarily be either cases where the fresh evidence showed clearly that the defendant was innocent of the crime of which he was convicted (category (1)) or cases where the fresh evidence so undermined the evidence against the defendant that no conviction could possibly be based upon it (category (2)), or, since the enactment of section 133(1ZA), category (1) alone. Category (1) was no more than a subset of category (2). If it was legitimate for the state to require a defendant to show at least that his or her case fell within category (2), there was no basis for it to be illegitimate for the state to require a defendant to show that it fell within category (1). All that an applicant for compensation would need to do was assert that his or her claim fell into a higher category than cases where the fresh evidence rendered 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 (category (3)), and the state would be precluded from asserting the contrary, because to do so would be to infringe the presumption of innocence.

6.  A way out of the 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. The two situations were distinct as a matter of domestic criminal law, and the legislature had 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 appeared too full of unsatisfactory and unsatisfying distinctions and uncertainties.

7.  In any event and even if article 6(2) did have a wider application in respect of claims not involving any criminal charge, the Court was not persuaded that section 133(1ZA) could or should be regarded as incompatible with article 6(2) of ECHR. For all those reasons a declaration of incompatibility was inappropriate.

Lady Hale concurring:

8.  Where it was clear that the European Court of Human Rights would find that the United Kingdom had violated the Convention in respect of an individual, it was wise for the court also to find that his rights had 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 (ECtHR) to have them vindicated.

9.  However, it did not follow that the Strasbourg court would automatically find that it had been breached in the case. The Strasbourg court had 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 7

(b) civil claims by or on behalf of third party victims against a former defendant in criminal proceedings which had been determined in his favour.

In category (b) cases, where the parties were different, the standard of proof was different, the admissible evidence could also be different, and liability was not dependent upon criminal proceedings having been brought at all, the Strasbourg court had clearly accepted that the civil claim could be determined differently from the criminal proceedings without violating article 6(2).

10. The important thing was the language adopted by the court when deciding the civil claim. The real test was, or should be, whether the court in addressing the civil claim had suggested that the criminal proceedings should have been determined differently. Courts had to always be able to explain their decisions fully, clearly and honestly. The one thing they had to avoid was suggesting, in civil proceedings, that the defendant should have been convicted of the criminal offence.

11. If that were indeed to be the approach of the Strasbourg court to those 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 would lead to a violation of article 6(2) in some cases where compensation was denied. But the court was not convinced that it would always do so. 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 that was explained without suggesting that the defendant should have been convicted, there was no breach of article 6(2) of the Convention.

12. Where a particular statutory provision could or could not lead to a violation, it was not appropriate to make a declaration of incompatibility in proceedings brought by an individual in respect of whom the Strasbourg court was unlikely to find a violation, as those were. The appropriateness of making a declaration of incompatibility in the case had nothing to do with the view of the merits of the amendment to section 133.

Lord Wilson concurring:

13. The court’s duty under section 2(1) (a) of the Human Rights Act 1998 (the 1998 Act) was to take into account any relevant judgment of the ECtHR. There had been a number of observations in the court, and in the appellate committee which preceded it, that the duty to take account of such a judgment should almost always lead the domestic courts to adopt it. In the absence of some special circumstances it seemed that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it did not do so there was at least a possibility that the case would go to that court, which was likely in the ordinary case to follow its own constant jurisprudence.

14. The context of the present appeals, to which the nature of the court’s duty under section 2 of the 1998 Act was therefore specific, was a line of jurisprudence in the ECtHR which was not just wrong but incoherent. The courts had not previously been called upon to address a context of that sort.

15. Although people sometimes spoke of the Convention having been incorporated into domestic law that was a misleading metaphor. What the 1998 Act had done was to create domestic rights expressed in the same terms as those contained in the Convention. But they were domestic rights, not international rights. Their source was the statute, not the Convention. They were available against specific public authorities, not the United Kingdom as a state. And their meaning and application was a matter for domestic courts, not the court in Strasbourg.

16. The last point was demonstrated by the provision in section 2(1) of the 1998 Act that a court determining a question which had arisen in connection with a Convention right had to take into account any judgment of the Strasbourg court. Under article 46(1) of the Convention, the United Kingdom was bound to accept a judgment of the Strasbourg court as binding. But a court adjudicating in litigation in the United Kingdom about a domestic Convention right was not bound by a decision of the Strasbourg court. It had to take it into account. The instant court should not adopt the meaning ascribed to article 6(2) by the ECtHR as it should dismiss the appeals.

Lord Hughes concurring:

17. The case was a remarkable illustration of the consequences of the wide propositions which had 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 was under consideration ought to be informed by all relevant information, and that to exclude material because it revealed the possibility of a criminal offence simply because there was not sufficient evidence to prove it beyond reasonable doubt was to court danger to the public. The much more logical basis for the outcome of the case was surely that a presumption of innocence had no place in such risk assessment. Article 6(2) had no application, for conviction and punishment were not in question. That was so even if on a different legal test and applying a different standard of proof, a conclusion was reached which included a finding that acts amounting to an offence were relevant to that assessment. The accused in the 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.

18. The legal scenario which perhaps most plainly exposed the debate about the scope of article 6(2) was the civil claim for compensation made by a person who was or was a complainant in a criminal trial against the person who was or was the accused. It would of course sometimes be true that the legal constituents of the tort alleged were less exacting than those of the criminal offence. In other cases the issue in the criminal trial could be different because a defence was raised, such as mental disorder, which did not apply to a tort claim. But often the issues would be identical, and frequently the evidence relied upon would also be the same. A classic example was the claim by someone who said that she was raped by the accused. His case was 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 had been acquitted by the jury so it was known that the criminal standard of proof had not been achieved, but in the civil proceedings the standard was the balance of probabilities. Such cases were by no means unusual.

19. Equally common, if not more so, were cases where a care order was sought by the local authority in relation to children. The test for such an order was that the child was at risk of significant harm attributable to inadequate parental care. There could be many different parental inadequacies relied upon, but a very common instance was the case which depended on an alleged risk of abuse, physical or sexual, by a parent or an associate of a parent, and where the risk was said to be proved by past abuse of that or another child. Such an alleged abuser could well also be prosecuted. If he was acquitted, on the criminal standard of proof, it was 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 were familiar with such cases, and with the duty to find, one way or the other, on the balance of probabilities, whether the past abuse was made out despite acquittal in the criminal court.

20. The present case was 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 had attended the Strasbourg court’s conscientious efforts to extend the applicability of article 6(2), demonstrated that article could not sensibly apply beyond the criminal trial and the investigation which preceded it. The objective of not undermining an acquittal which underlay the suggested gloss on article 6(2) could and should properly be maintained but it meant that the acquitted accused had to be recognised as unconvicted, immune from punishment by the state and from characterisation as a criminal, but not that he escaped all consequences of the ordinary application of his country’s rules as to evidence and the standard of proof outside criminal trials.

21. The analysis of the scope of article 6(2) was consistent with:

(i) the wording of the article, which applied it to persons charged with a criminal offence; it was irrelevant that that expression had an autonomous meaning under the Convention since everyone agreed that the suggested second aspect of, or gloss upon, article 6(2) applied it to those who were 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 gave 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 mirrored 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 no-one 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) applied only to criminal proceedings and not to proceedings for compensation; the court in Allen referred to the conclusion but did not address it in its reasoning.

22. The Strasbourg court had been at pains to say in case after case that neither article 6(2) nor any other international rule gave an unqualified right to such compensation. The limited right which was recognised internationally was that stated, in more or less identical terms, in article 3 Protocol 7 to the ECHR, for those states which had acceded to it, and in article 14(6) of the International Covenant on Civil and Political Rights. That right was limited to those whose conviction was reversed or who were pardoned, and of those only where the reversal or pardon was on the ground that a new or newly discovered fact showed conclusively that there had been a miscarriage of justice. So there was no right to compensation for those who were acquitted at trial. Nor did 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 was thus restricted, the test was plainly entirely different from the test of guilt or innocence at trial, and from the test of safety of the conviction on appeal.

23. Proceedings seeking such compensation, although they were predicated upon there having been a conviction which had been quashed, so that a criminal prosecution with that outcome was a sine qua non for an award, were not part of the criminal process but rather were in aid of a distinct and limited civil right. For that 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 could only be said to be “based on” the former in the sense that the first condition of eligibility for compensation was that the conviction had been quashed. But to say that compensation was based on the quashing was to ignore the several other conditions of eligibility which had to also be satisfied. Secondly, it was for the claimant to show that he was within the statutory test; to that extent at least it had to be common ground that he bore the onus of proof. Thirdly, it should be clear that the presumption of innocence had simply no place in such proceedings, for the simple reason that conviction and punishment were not in issue.

24. The correct analysis was that article 6(2) did not apply to section 133 claims for compensation. It certainly required that in such claims, as in any other proceedings, the reversal of the conviction was treated as unquestioned. But it did not inject into the quite different section 133 test a presumption that the erstwhile accused did not commit the crime; it held that he had not been proved to the strict criminal standard to be guilty. Nor therefore did article 6(2) apply so as to strike down the provision in section 133(1ZA) which made clear that a claimant for compensation had to accept the onus of bringing himself within the eligibility criteria laid down by Parliament.

25. If, contrary to that clear view, it be held that the court was duty bound by the Strasbourg jurisprudence to hold that article 6(2) did apply to a section 133 claim, to require a claimant to prove his case of eligibility was not a breach of it. That was because what article 6(2) (if it applied) preserved was the presumption of innocence in the sense of being a person who was acquitted, unconvicted and unpunishable. “Innocence”, in the context of the criminal law and of article 6(2), did not mean “exonerated on the facts”; it meant “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) did not require the claimant to prove that he had the status. That status (which appeared to be what the courts below meant by “innocence” in a general sense) was already a given, once the conviction had been quashed by the Court of Appeal (Criminal Division). What the new section required was that the claimant proves something different and additional, viz the condition of eligibility for compensation under the scheme established in England and Wales. The mere fact that the section required 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 did not and could not.

26. The 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 had emphasised time and again that language (i.e semantics) was for it the critical test of breach of article 6(2). In reality it was not a mere semantic distinction but reflected a fundamental principle of the criminal law, namely the strict enhanced standard of proof. It was 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 would work to determine the scope of article 6(2) in the face of that difficulty.

Lord Reed: (dissenting)

1.  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 applied equally, if not a fortiori, to section 133 in its amended form.

2.  The court’s approach to judgments of the European Court of Human Rights was well established. Section 2 of the Human Rights Act required the courts to take into account decisions of the European court, not necessarily to follow them. In taking them into account, the court recognised their particular significance. The Strasbourg court authoritatively expounded the interpretation of the rights embodied in the Convention and its protocols, as it had to, if the Convention was to be uniformly understood by all member states.

3.  It could sometimes be inappropriate to follow Strasbourg judgments, as to do so could prevent the court from engaging in the constructive dialogue or collaboration between the European court and national courts on which the effective implementation of the Convention depended. In particular, dialogue had proved valuable on some occasions in relation to chamber decisions of the European court, where the court could be confident that the European court would respond to the reasoned and courteous expression of a diverging national viewpoint by reviewing its position.

4.  The circumstances in which constructive dialogue was realistically in prospect were not, however, unlimited. Where, however, there was a clear and constant line of decisions whose effect was not inconsistent with some fundamental substantive or procedural aspect of the law, and whose reasoning did not appear to overlook or misunderstand some argument or point of principle, it would be wrong for the instant court not to follow that line.

5.  There was also unlikely to be scope for dialogue where an issue had been authoritatively considered. It would have then to involve some truly fundamental principle of the law or some most egregious oversight or misunderstanding before it could be appropriate for the court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.

6.  It was difficult to accept that the court should deliberately adopt a construction of the Convention which it knew 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. The decisions taken under section 133 fell within the ambit of article 6(2).

7.  The insertion of section 133(1ZA) into the 1988 Act had had the effect of introducing a test that the fresh evidence had 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 the 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 demonstrated that his innocence had been established by a new or newly discovered fact and nothing else. 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.

8.  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, appeared to be unrealistic. A person who could make a valid application under section 133 of the 1988 Act was, of necessity, someone whose conviction had been quashed because of the impact of a new or newly discovered fact: that followed from the terms of section 133(1). In most cases which satisfied that criterion, there would 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 did not establish the person’s innocence did not, therefore, usually leave open a realistic possibility that he or she had been acquitted for some other reason, which that decision left unaffected. On the contrary, the implication of the decision was likely to be that, although the new or newly discovered fact had led to the quashing of the conviction, the person’s innocence had not been established. The decision therefore cast doubt on the innocence of the person in question and undermined the acquittal.

9.  The idea that there was a meaningful distinction between assessing whether innocence had been established by a new or newly discovered fact, and assessing whether innocence had been established in a more general sense, also appeared to be unrealistic for another reason. Normally, at least, the significance of a new piece of evidence could only be assessed in the context of the evidence as a whole.

10. In cases falling within category 2, the person had received an acquittal on the merits, in the language used by the European court: the Court of Appeal had assessed all the evidence and had concluded that, allowing the defendant the benefit of any reasonable doubt, only a verdict of acquittal could reasonably be arrived at. It was no longer permissible to rely on suspicions regarding the defendant’s innocence, as the Secretary of State had to do when refusing an application for compensation under the amended section 133 on the ground that the fresh evidence did not demonstrate the applicant’s innocence. Even in cases where there had not been an acquittal on the merits in that sense, as could be the position in the present cases, it was 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 was to be assessed, they were entitled under the Convention to the protections afforded in criminal proceedings, including the benefit of the presumption of innocence.

11. The application of a test which in substance infringed the presumption of innocence was not rendered acceptable by the addition of words intended to avoid a conflict with article 6(2), if the overall effect was nevertheless to undermine a previous acquittal. 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).

12. The definition of a miscarriage of justice introduced by section 133(1ZA) of the 1988 Act was incompatible with article 6(2) of the Convention.

Lord Kerr: (dissenting)

13. There was general agreement among the members of the court – or, at least, no overt dissent that decisions made under section 133 fell within the ambit of article 6(2). The question to be concentrated upon, therefore, was whether the context set by section 133(1ZA) involved an inevitable conflict with the article. If a decision as to whether a person whose conviction had been quashed was to receive compensation only if he showed that he was innocent, such a requirement was not compatible with article 6(2).

14. Much of the jurisprudence on the second aspect of the sub-article had been influenced, albeit perhaps not explicitly, by the dilemma that that presented. The opportunity to proclaim one’s innocence and the right to benefit from the recognition and acceptance of that condition lay at the heart of much of the dispute in the case and much of the case law of the Strasbourg court on the subject. But an inevitable sub-text was that establishing innocence as a positive fact could be an impossible task. That was especially so if conventional court proceedings did not provide the occasion to address, much less resolve, the issue.

15. Those who had been acquitted simply because the properly high standard for criminal conviction had not been met, but against whom real suspicions as to guilt remained, should not be able to shelter behind the shield of innocence that article 6(2) established. 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 was involved.

16. The real test was not, or should not be, whether the court in addressing the civil claim had suggested that the criminal proceedings should have been determined differently. There were two fundamental objections to that formulation of the test. The first was that it would cut out a swathe of deserving applicants when they had not been able to prove that they were innocent when they were in fact. The second was that their fate was determined on the phraseology which happened to be chosen by the court and thus would make the declaration of incompatibility which the appellants sought.

Relevance to the Kenyan Situation

In Kenya, wrongful conviction arises in situations where there is wrongful or malicious prosecution. The Constitution of Kenya, 2010 provides in article 29 (a) that a person has the right not to be deprived of freedom arbitrarily or without just cause. Article 39 (1) goes on to further state that every person has the right to freedom of movement. Article 50 provides that every accused has the right to fair hearing which includes right to be presumed innocent until proven guilty and right to be informed of the charge with sufficient detail to answer it.

There has been case law in Kenya on malicious prosecution and in Abdi Ali Bare v Republic [2015] eKLR, the appellant was charged with the offence of attempted murder. After the trial in which seven witnesses testified for the prosecution and the appellant gave out sworn evidence without calling any witnesses, the trial court convicted the appellant with attempted murder. After the matter went to the Court of Appeal, the appellate court evaluated the grounds raised by the appellant in the appeal. The court was satisfied on his grounds and ordered his discharge.

The very recent case of Julius Wambua has also shed light on the unfortunate case of victims of wrongful conviction. His wife used his daughter to frame the father for raping her and Julius was convicted for life imprisonment for defiling his daughter. After 10 years, clocking this year March, the daughter came forward and confessed that there was no defilement and it was the mother who coerced her into the lie. He has since lodged a claim in the Court of Appeal against the false testimony that implicated him.

Wrongful conviction is an embodiment of the miscarriage of justice that results therefrom. The present Kenyan law does not afford comprehensive remedial considerations to the victims of wrongful convictions thus failing the test of justice. During the time one is in prison they could have significantly progressed in many facets of life be it socially, economically or spiritually.

The UK case is therefore very important to the Kenyan jurisprudence as it sets the precedent on awarding compensation to victims of wrongful conviction once they prove existence of ne facts that show beyond reasonable doubt that there was a miscarriage of justice in their conviction.

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