Since publication of this piece the Supreme Court has rejected Nealon’s appeal: R (Hallam, Nealon) v Sec of state 2019. (See note at foot of piece)
In the case of Victor Nealon, seeking compensation for a miscarriage of justice, UK Justice Secretary Chris Grayling seems to have flown in the face several tenets of the British legal tradition. He has overturned the principle that a person is innocent until proved guilty; reversed the burden of proof (that the prosecution must prove guilt, not the defence prove innocence); defied the standard of proof – guilt (not innocence) beyond reasonable doubt; and created himself as a quasi-judicial figure who is judge and jury in his own court. That’s some going as we celebrate Magna Carta, the foundation document for the rule of law.
On the face of it, it all seems perfectly legal, since his treatment of miscarriages of justice is enshrined in legislation passed last year . In reality, though, there is a strong case against Grayling – and a strong argument that his legislation is fatally flawed.
Nealon had been locked up for 17 years of a life sentence for attempted rape. When released in 2013 thanks to new DNA evidence he was denied compensation. His conviction in 1997 was ruled unsafe and he was released 10 years after his 7-year minimum tariff. Parole had throughout that time been rejected in part because he had continued to deny his guilt.
Grayling has refused to order compensation because his innocence has not been proved “beyond reasonable doubt”. This is quite contrary to the principle in criminal law cases that guilt must be proved beyond reasonable doubt – innocence need not be. But the new standard of proof specifically for miscarriage of justice compensation claims was rushed into law last year  as an amendment to Section 133 of the 1988 Criminal Justice Act – Section 133 (1ZA). The decision looks justifiable in law – which is probably why leave for a judicial review was turned down in December 2014.
This piece nevertheless argues that Grayling’s decision is challengeable in law and that the new legislation is unworkable – creating as it does a new legal concept (innocence beyond reasonable doubt) with no forum or expertise to establish innocence to such a level of certainty. This means that any decisions to reject claims based on the new law (rather than the perfectly functional law as it stood before 2014) will be open to challenge because they will all have been arrived at unreasonably – without the necessary evidence being made available to the Secretary of State nor any possibility of its being made available. There is also a strong arguable case that the Ministry of Justice and the new law itself is in breach of Article 6 of the European Convention on Human Rights: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Continue reading