Nealon & Anor, R (on the application) v The Secretary of State for Justice

Section 133 of the Criminal Justice Act 1988, as amended, does not require an applicant to prove innocence in a general sense. The relevant question is whether the new or newly discovered fact shows beyond reasonable doubt that the applicant did not commit the offence. A refusal of compensation under the statutory scheme does not, without more, undermine the presumption of innocence.

The Divisional Court was bound by R (Adams) v Secretary of State for Justice to hold that article 6(2) of the Convention had no bearing on section 133. In any event, the amended provision was compatible with article 6(2). The Secretary of State was entitled to rely on the Court of Appeal’s reasoning and expert evidence when deciding whether the statutory test was met.

These were rolled-up applications for permission to seek judicial review by Victor Nealon and Sam Hallam. Each claimant’s conviction had been quashed by the Criminal Appeal Court after a later referral by the Criminal Cases Review Commission.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988, as amended by the Anti-social Behaviour, Crime and Policing Act 2014. The claimants argued that section 133(1ZA), which requires the new fact to show beyond reasonable doubt that the claimant did not commit the offence, was incompatible with article 6(2) of the Convention. Mr Nealon also challenged the Secretary of State’s decision on ordinary public law grounds.

The central issues were the effect of R (Adams) v Secretary of State for Justice and Allen v United Kingdom, and whether the statutory test had been lawfully applied.

1. The claims were dismissed. Permission to apply for judicial review was granted to both claimants, but the claims failed on their merits.
2. The court was bound by R (Adams) v Secretary of State for Justice to hold that article 6(2) of the Convention had no bearing on compensation decisions under section 133 of the Criminal Justice Act 1988. The conclusion was a necessary part of the reasoning of the relevant majority in Adams, notwithstanding differences in the judges’ reasoning.
3. The statutory language linked the new fact to the claimant’s innocence of the particular offence. It did not impose a freestanding requirement that the claimant prove general innocence. Compensation was payable only where the new fact conclusively established that the claimant did not commit the offence. The refusal of compensation did not itself imply guilt or undermine the presumption of innocence.
4. The reasoning of the Strasbourg Court in Allen v United Kingdom did not require a declaration of incompatibility. Even assuming article 6(2) applied to section 133 decisions, section 133(1ZA) was not incompatible with it. The Strasbourg decision concerned the language used in the domestic decisions and did not determine the meaning or compatibility of the amended statutory test.
5. In Mr Nealon’s case, the Secretary of State was entitled to consider the expert evidence, including the possibility that the attacker had transferred little or no DNA to the clothing. He was not required to undertake an independent detailed re-analysis of all the evidence or to determine for himself the likelihood that the unknown male was the attacker. The decision was based on the judgment of the Criminal Appeal Court and disclosed no misunderstanding of the applicable standard.

Not an appeal. The judgment describes earlier Criminal Appeal Court decisions quashing the claimants’ convictions, including [2012] EWCA Crim 1158 and [2014] EWCA Crim 574. The present proceedings challenged the Secretary of State’s refusals of compensation under section 133 of the Criminal Justice Act 1988.