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. 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.”
This piece includes a lot of explanatory background. For those who do not need this, feel free to scroll down to the meat of the argument starting at “The case against Grayling: Wednesbury”.
The 1988 Act at Section 133 originally said compensation should be paid to those who have suffered miscarriage of justice if a conviction is reversed as a result of new evidence:
“Compensation for miscarriages of justice: (1) 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.”
Note that this simply requires the original conviction to have been reversed. A finding, as in Nealon’s case, that the original conviction was unsafe and should be set aside because of the new evidence counts as a reversal of the conviction.
Note also that we are at risk of getting our probabilities in a twist. Although the Act says the new evidence must show “beyond reasonable doubt that there has been a miscarriage of justice”, this is not the same as proving innocence beyond reasonable doubt. It means instead that there must be clear proof (ie beyond reasonable doubt) that the standard to prove guilt in the original case (beyond reasonable doubt) could not have been met if the new evidence had been available.
This, ultimately, was the case with Nealon (looked at in full here) in which new DNA evidence did not prove he had not attacked the woman but suggested another man might have done. There was the saliva of a mystery man on the victim’s bra and no DNA evidence implicating Nealon. So he could be released as if he had never been convicted, based on this formulation established in the High Court case of Ismail Ali and others  EWHC 72 (Admin) (the case that prompted the Ministry of Justice’s panic change to the law): “Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now considered?” (Para 41) If so, compensation should be paid.
The justices in the case added: “It is to be emphasised that in any case the CACD [Court of Appeal Criminal Division] is concerned with the safety of the conviction and not whether an appellant is innocent. The fact that the court does not express a view on innocence or guilt cannot of itself disentitle an appellant from qualifying under section 133.” (Para 42) This is the principle the Ministry of Justice rejects, and why it rushed through the 2014 law change.
In one of the five cases in Ali, that of a convicted murderer Ian John Lawless released on new psychiatric evidence undermining a confession, the MoJ had argued: “The [appeal] Court did not provide any indication that the new medical evidence obtained by the CCRC [Criminal Cases Review Commission] proved clear innocence, only that the jury might have acquitted. There was no finding by the Court that the new medical evidence had made the confession evidence clearly untrue; rather that a jury might have been more likely to disbelieve it.”
The Crown Prosecution Service had not pursued a retrial after the Court of Appeal reversed the conviction because “there would have been nothing further to have put before any jury in any retrial” and Lawless had served 8 years of a 10-year tariff on the sentence. But the MoJ insisted “there could still have been the possibility of a just conviction based on the confession evidence”, a further reason for not giving compensation. (Para 181)
The judges upheld Lawless’s claim, however, even though “the non-disclosure of the unknown fact is wholly or partly attributable to the person convicted” (grounds for rejection under S.133) by a false confession. The MoJ had involved itself in “disregarding Mr Lawless’s psychological makeup and the non-disclosure of his tendency to make false confessions and treating them as ‘wholly or partly attributable’ to him.” This tendency was known about all along (and, as is implied by the judges, been overlooked). “Once all expert evidence agreed that the confessions were unreliable, no jury could properly convict on the basis of such admissions. This was not a fresh issue; it was the central issue at first instance.” The confession was unreliable and “in the absence of the confessions there was simply no case”.
In the case of Ismail Ali, the MoJ didn’t consider that new evidence in his favour, albeit “capable of belief”, would necessarily have undermined the case. Significantly the justices agreed with the MoJ. The new evidence couldn’t be taken to show beyond reasonable doubt that a jury would not have convicted and so Grayling could deny compensation on the old S.133 grounds.
Indeed, four of the five applications wrapped up in Ali failed, so no compensation was paid, including that of Barry George, wrongly convicted of the Jill Dando murder. This success rate was not good enough for Grayling since the principle had nevertheless been confirmed (following Lord Phillips in Adams and others  UKSC 18) that S.133 did not require proof of innocence beyond reasonable doubt. So the S.133 amendment was added to the 2014 Antisocial Behaviour, Crime and Policing Act at Section 175.
The MoJ amendment
A new S.133 (1ZA) to the 1988 Act sought to ensure compensation for miscarriages of justice only where the accused is clearly innocent beyond reasonable doubt. It says:
“For the purposes of subsection (1) [set out above], 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).”
This is the law Nealon has fallen foul of. The Court of Appeal in his case accepted that the new DNA evidence was sufficient to show “beyond reasonable doubt that there has been a miscarriage of justice” and the court did not need to go further to prove Nealon innocent beyond reasonable doubt. There was therefore no evidence he was innocent; only evidence that he could not reasonably be found guilty since that is all a court needs to reverse a conviction.
The case against Grayling: Wednesbury
So what will happen if the Nealon case does come to judicial review (his lawyers are appealing against the refusal of leave)? What arguments might be put that the Justice Secretary refused compensation unlawfully?
The nub of the issue is that in making his decision he must act reasonably – but since he will not have informed himself of any evidence going to the issue of innocence beyond reasonable doubt, he cannot have acted reasonably. He will have had a report of the appeal case which will not have looked at “beyond reasonable doubt” innocence – because for the purposes of reversing a conviction the judges have no need to consider such evidence or come to a view on innocence.
In fact judges and juries in Britain never really need to consider innocence beyond reasonable doubt because such consideration is not part of our law. As long as guilt cannot be established beyond reasonable doubt, that is enough to acquit an accused. Defence lawyers are skilled in their trade of undermining a prosecution case but are not required to establish innocence beyond reasonable doubt. No court or tribunal has been set up for the purposes of the new Section 133 procedure – and in reality none could be. No papers before him (reports of the appeal) could address this issue. So a judicial review should in justice find such a decision against a compensation claimant Wednesbury unreasonable: “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
This is why the new law is fatally flawed. It was passed with little thought about the practicalities, leaving a vacuum inside a paradox where a process should exist. In effect it allows only one scenario that would involve compensation – when the police have reopened the case, found a new suspect and successfully had him convicted. All other cases must be rejected (though conceivably a strong statement on innocence by an appeal judge might be accepted by the Secretary of State), yet the law does not say all other cases must be rejected. It says they must be considered, that the Secretary of State has discretion – when clearly he has very little.
Of course, Grayling could have used the law as it was before amendment and decided that the formulation “new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice” did not apply in Nealon’s case. But that would be to show a lack of faith in the new law which allows him to dismiss pretty well any case.
The case against Grayling: Human rights
The previous argument treats Grayling simply as an official administering a compensation scheme, which he must do reasonably. It is arguable, however, that the amended law makes him something more than that – an essential part of the justice process, something akin to a one-man tribunal. Article 6 says:
“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.”
Is the Secretary of State now determining a civil right rather than administrating a compensation scheme? He is, after all, deciding on the innocence or guilt of a person in a criminal matter, not merely sanctioning compensation on the basis of the finding of a court. And he is making a judgment about a pretty essential civil right: that someone should not be unjustly imprisoned by the state.
So the question is:
a) should the requirements on him be more intense regarding impartiality and a more thorough procedure to arrive at a decision than in the case of someone merely administering a compensation scheme; and
b) is the Article 6 right to a fair hearing satisfied by the fact that, as a backstop, his decision is judicially reviewable?
A couple of cases in the area of homelessness legislation may be worth a read – for discussion on this matter rather than the relevance of their conclusions. Here judges have balked at the idea that discretionary decisions of the state under the Homelessness Act might amount to a quasi-judicial decision on a “civil right” requiring a more intense level of judicial scrutiny (taking into account human rights law) than a mere administrative decision (where Wednesbury suffices). In Runa Begum v Tower Hamlets  UKHL 5 the Court of Appeal was prepared to accept, for the sake of argument, that allocation of housing to a homeless person was such a right but that, if so, Article 6 was satisfied by the opportunity to appeal against a local authority decision via the County Court on conventional judicial review grounds – albeit that the court did not have full fact-finding powers. There was held to be a difference between such administrative matters and adjudications on matters such as private rights and the criminal law, which had to be decided by a Court.
In Tomlinson and Others  UKSC 8 considered that the Housing Act requirement did not constitute a civil right. Nevertheless Lord Hope noted that the European Court of Humn Rights had found statutory sickness allowance, a pension scheme and welfare schemes were civil rights or close to civil rights. But in these cases the “entitlement was to an amount of benefit that was not in the discretion of the public authority” – unlike the Housing Act requirement. In helping define a civil right Lord Hope quotes this from Mennitto v Italy 34 EHRR 1122, para 23: “a ‘right’ which can be said, at least on arguable grounds, to be recognised under domestic law”, and:
“The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question”.
Any of this might suggest compensation for miscarriage of justice has the characteristics of a civil right, though this was not the view taken by justices in Ismail Ali and others (see above), before the 2014 amendment. The barrister for three of the claimants had argued that
“the determination of eligibility for compensation under section 133 of the [original version of the] 1988 Act is the determination of a civil right for the purposes of Article 6 of the ECHR … Article 6 requires that the determination be by an independent and impartial tribunal. Since the Secretary of State is not an independent and impartial tribunal, it is argued that the level of scrutiny by the court must be sufficiently intense to address the limitations of the decision-making process by the Secretary of State”.
The judges rejected this submission (somewhat unconvincingly) on the grounds that under Section 133 “Parliament has assigned the primary decision-making function” ie to the Secretary of State. Even if Art 6 had been engaged (which the justices doubted), judicial review of the Secretary of State’s decision was sufficiently fair and impartial to satisfy its requirements.
Even accepting that was the case in 2013, it was in the context of the fairly simple administrative exercise required of the Secretary of State previously: establish that a conviction has been reversed; check that the miscarriage of justice was shown “beyond reasonable doubt”; sign off on a payment to the claimant (amount to be established by a separate independent body).
Now, though, it is strongly arguable that new law gives the Justice Secretary quasi-judicial powers to decide for himself, on any evidence he wishes to admit, whether the claimant was actually innocent and should get a payment. He has “fact-finding powers” in effect – though, in this paradoxical and flawed system, he has no thorough and fair means of establishing those facts (as argued above). It follows he is judge and jury in a case in which he has a direct interest – to keep payments down to a minimum. How can he be impartial – in particular given he will not be constituting an independent court or tribunal to get to the facts, will not be calling evidence – and doubtless will not through legal aid be funding lawyers to make submissions regarding innocence “beyond reasonable doubt”.
Instead he’ll presumably read the appeal case, discover (inevitably) that the judges have answered “yes” to the question “Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now considered?”; establish (inevitably) that this does not constitute finding the claimant innocent beyond reasonable doubt; and (inevitably) will reject the claim.
This is not an Article 6 compliant process or forum for establishing the claimant’s right. The effect of Grayling’s recent legal changes to judicial review may also severely limit the use of an independent court or tribunal as a backstop – and it surely cannot be argued that creating one inevitably unfair and partial level of judging people’s civil rights is fine since claimants can always fall back on another more fair one. For those small numbers of cases where the police do eventually find the real perpetrator, justice for the innocent person will have inevitably been delayed. He will not have received a fair hearing “within a reasonable time”.
So, with his new powers, Grayling [now Gove] may come under a new requirement to act convention compliantly and opened his decision to more intense judicial review than that offered by Wednesbury principles, where administrators can get away with a “not unreasonable” decision.
The Case against Grayling: Breach of treaty
The 1988 Act’s Section 133 was brought in to reflect Britain’s obligations under Article 14(6) of the International Covenant on Civil and Political Rights, which says:
“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.”
Note that the Act follows the wording pretty much but uses the words “beyond reasonable doubt” where the Article has “conclusively”. During a House of Lords debate on S.133 (Hansard July 1988) there was a move to remove the words “beyond reasonable doubt” altogether: “They are unnecessary and impose too high a standard,” said Lord Elwyn-Jones. Lord Ferrers for the Government rejected the change, saying: “It seems to be right and reasonable that the consequence of the new fact should be demonstrated ‘beyond reasonable doubt’. That is the measure that the criminal courts will normally take.”
Arguably the further level of certainty required under the 2014 amendment could put Britain in breach of Article 14(6) since, in effect, it deletes the words “shows … there has been a miscarriage of justice” and replaces them with the implied words “shows the person convicted is innocent”. Lord Phillips noted in Adams “the rule of statutory interpretation that raises a presumption that, where a statute is passed in order to give effect to the obligations of the United Kingdom under an international convention, the statute should be given a meaning that conforms to that of the convention”. It seems legally rather dubious that another statute might be passed to contradict that intention. The new S.133(1ZA) says: “references in the rest of this Part to a miscarriage of justice are to be construed accordingly” ie according to the new definition requiring proof of innocence. If the wording of the Act reflected the meaning of “miscarriage of justice” in the Convention in 1988, how can other, more restrictive, words retain that meaning?
The Vienna Convention on interpretation of international treaties at Article 31(1) says: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Grayling seems not to be acting in good faith, but rather to subvert the treaty and to avoid its object and purpose: the compensation of those who have suffered miscarriages of justice.
These comments from Stanley Burnton J found favour in Tower Hamlets v Runa Begum (2002, the Court of Appeal case):
“Obligations give rise to rights; discretionary payments and discretionary support do not … A line has to be drawn between those decisions which, in a democratic society, must be given to an independent tribunal and those which need not. Article 6 draws this line by restricting the requirement to the determination of criminal charges and civil rights and obligations. A right by definition is something to which the citizen is entitled, to which he has an enforceable claim. A discretionary benefit, one that a government may give or refuse as it wishes, cannot be the subject of a right.” (R (Husain) v Asylum Support Adjudicator  EWHC Admin 852)
So is compensation for miscarriage of justice a “discretionary benefit” or something more fundamental – something to do with relations between the individual and the state, to recognise it is a human right that one should not be locked up unjustifiably – and hence surely also a human right that one should be compensated when it happens? The MoJ amendment no doubt sought to turn compensation into a discretionary benefit but failed legally (according to the argument of this piece) because of the inherent flaws – the complete lack of procedure for arriving at a rational decision on “innocence beyond reasonable doubt”.
If arguments such as these did succeed in court, Grayling would of course be outraged, claiming unelected judges had balked the will of Parliament. Perhaps – if you assume Parliament’s will was simply not to pay out money in these cases. If so, Parliament should have said so. But surely Parliament’s will is inherently to favour fairness and rationality in decision-making – unless it explicitly says not. One can assume, then, that it wished for at least Wednesbury reasonableness and, as it is legally obliged, ECHR-compliance when passing the amendment – as well as adherence to its treaty obligations (which courts will always assume). Grayling, having no legal background and certainly not being a stickler for constitutional niceties, will not have understood this.
The fact that the amendment is a nonsense is Parliament’s fault (as well as the fault of its MoJ sponsors) but Parliament must often accept the legal consequences in the Royal Courts of Justice of an irrational piece of legislation passed in the Palace of Westminster.
Note: Nealon is said to be considering a claim for wrongful imprisonment. Given this is a civil tort claim, he will only have to prove his case “on a balance of probabilities” rather than beyond reasonable doubt – as would all such claimants denied compensation under the S.133(1ZA) amendment. It is by no means an easy option, but the effect of Grayling’s “reform” may well be further costly legal wrangling – with a very good chance of the Government losing.
Note: In 2015 Nealon has had his case rejected at the High Court (BBC report 8/6/2015). Victor Nealon’s lawyer said the judgment was “wrong legally and morally” and confirmed he would appeal. The appeal has now been set for March 2016.
The Bailii version of the original case is here.
Here is a law report on the case of Nealon and Sam Hallam by The Public Lawyer. Matthew Stanbury notes that the European Court of Human Rights suggested Article 6(2) is applicable to such cases in Allen v United Kingdom  36 BHRC 1 (on right to be presumed innocent) – so UK law and the ECHR are currently at odds on this issue.
• A report on the Court of Appeal application in Nealon is here. Burnett LJ concludes:
“The reality in this case is that of the Secretary of State’s decision is based squarely upon the judgment of the CACD [Court of Appeal]. I have set out the main conclusions found in Fulford LJ’s judgment. I do not accept that the Secretary of State was obliged, as a matter of law, to undertake his own detailed analysis of the evidence or evaluate for himself the chances that the unknown male was not the attacker. There is nothing in the decision letter which suggests that the Secretary of State misunderstood the standard of proof engaged in the decision. In the face of the way in which the CACD expressed itself the Secretary of State’s decision that the section 133 criteria were not met in Mr Nealon’s case is not legally objectionable.”
This is exactly the point challenged in the argument of this post: If Grayling based his view “squarely upon the judgment” of the Court of Appeal, then Nealon (and very applicant for compensation in these circumstances) could not possibly succeed – since the Court of Appeal judgment would offer no view on “innocence beyond reasonable doubt”, since it had no reason to do so. The Secretary of State should have inquired specifically into Nealon’s innocence rather than examining Court of Appeal papers that did not even address that issue. Lacking that information, his decision was Wednesbury unreasonable – inevitably.
• This by a lawyer in the Nealon case, Mark Newby, is a very useful piece: Not innocent enough (The Justice Gap)
• This discussion of Begum and human rights by Martin Westgate of Doughty Street Chambers at the Alba Summer Conference 2005 may be of interest too. In part it says:
“the reasoning in Begum cannot after all be applied to all administrative cases. Where there are fewer internal safeguards – for example the absence of any internal review – it might be possible to argue for greater scrutiny. Similarly, where fundamental rights are involved, then more may be demanded of the court before it has full jurisdiction. This was accepted by Lord Hoffmann in Begum. It arose in Q & Ors v Secretary of State  2 All ER 905 where destitute asylum seekers had been denied any support because they had failed to claim asylum as soon as reasonably practicable. Because of the importance of the matters at stake the court held: ‘were it not for the amplitude of modern judicial review we would have had some difficulty in holding that recourse to it was sufficient to satisfy article 6’.”
Categories of miscarriage of justice from Adams
There is no strict single legal definition of miscarriage of justice. Instead the courts have accepted all four of these categories set out in the Adams Court of Appeal case:
Category 1: where fresh evidence shows that the defendant is innocent of the crime of which he has been convicted.
Category 2: where fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could have properly convicted the defendant.
Category 3: where fresh evidence renders the conviction unsafe in that, had that evidence been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.
Category 4: 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
The Adams court of appeal case is here