Hallam & Anor, R (on the applications of) v The Secretary of State for Justice (rev 1)

Compensation under Criminal Justice Act 1988, section 133, is confined to the statutory new-fact test. It does not require an applicant to prove general innocence. The Secretary of State must ask whether the new or newly discovered fact alone shows beyond reasonable doubt that the person did not commit the offence. Refusal because that test is unmet does not cast doubt on the acquittal.

Domestic courts must follow binding domestic precedent even where later Strasbourg authority points another way. The court nevertheless held, in the alternative, that clear and constant Strasbourg authority made Article 6(2) applicable to such claims. Compatibility depends on the language and context of the decision. The amended test did not fundamentally alter the Secretary of State’s evaluative task.

Sam Hallam and Victor Nealon had criminal convictions quashed by the Court of Appeal Criminal Division after new evidence undermined the safety of their convictions. The Secretary of State refused their applications for compensation under section 133 of the Criminal Justice Act 1988.

The Divisional Court rejected their claims and refused a declaration of incompatibility: [2015] EWHC 1565 (Admin). It granted permission to appeal on the Article 6(2) issues but refused Mr Nealon permission on his domestic public-law challenge. The appeals concerned whether Article 6(2) applied to section 133 after later Strasbourg authority and whether the amended provision was compatible with the presumption of innocence. Mr Nealon also renewed his application for permission on the public-law ground.

Lord Dyson MR gave the judgment, with Sir Brian Leveson P and Hamblen LJ agreeing. Both appeals were dismissed. Mr Nealon’s renewed application for permission to appeal on the domestic public-law ground was refused.

1. Binding domestic precedent. The Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] UKSC 18 established, as part of its ratio on the issue, that Article 6(2) did not apply to the operation of section 133, whatever definition of miscarriage of justice was adopted. The Court of Appeal was bound by that decision under the domestic rules of precedent, as explained in Kay v Lambeth LBC [2006] UKHL 10. The appeals therefore had to be dismissed despite subsequent Strasbourg authority.
2. Alternative conclusion on applicability. Having heard full argument, the court held in the alternative that the Grand Chamber’s decision in Allen v United Kingdom (2013) 36 BHRC 1 established a clear and constant Strasbourg approach. Article 6(2) applies where there is a sufficient link between the concluded criminal proceedings and the later compensation proceedings. Section 133 claims satisfy that requirement because deciding eligibility inevitably involves examining the criminal appeal judgment. The court preferred the reasoning in Adams but could not decline to follow the Strasbourg authority.
3. Compatibility. Article 6(2) compatibility depends principally on the language used by the decision-maker and the context in which it is used. Language casting suspicion on an acquitted person’s innocence would breach the provision. Section 133 does not require proof of general innocence. It focuses on whether the new or newly discovered fact itself shows beyond reasonable doubt that the person did not commit the offence. The applicant remains presumed innocent, and refusal because the statutory test is not established does not undermine the acquittal.
4. Public-law challenge. The Secretary of State had to reach his own conclusion under the statutory test, but the evidence to be considered and the depth of the evaluative exercise vary from case to case. There was no universal legal requirement for a detailed analysis of every item of evidence or an independent evaluation of every specific evidential possibility. The amendment changed the statutory criteria but not the essential nature of the decision-making exercise. The Secretary of State’s decision disclosed no error of law.

The question whether permission should be given for a further appeal on the Article 6(2) applicability issue was left to the Supreme Court.

1. Court of Appeal (Civil Division): Appeals by both appellants dismissed. Mr Nealon’s renewed application for permission to appeal on the public-law ground refused: [2016] EWCA Civ 355.
2. High Court, Queen’s Bench Division, Divisional Court: Claims rejected and declaration of incompatibility refused. Permission to appeal was granted on the Article 6(2) issues but refused on Mr Nealon’s public-law challenge: [2015] EWHC 1565 (Admin).