R v Secretary of State for Justice

A statutory scheme may restrict compensation for a quashed conviction to cases where a new or newly discovered fact shows beyond reasonable doubt that the claimant did not commit the offence. Failure to meet that additional eligibility condition does not reverse the acquittal or establish guilt.

The criminal appeal court determines whether a conviction is unsafe. It has no power to make a formal declaration of factual innocence. It may state that fresh evidence plainly exonerates an appellant where that conclusion forms part of its reasons, but such cases are rare. No adverse inference may be drawn when it makes no such statement.

After fresh evidence led the Court of Appeal (Criminal Division) to quash their convictions as unsafe, Mr Hallam and Mr Nealon sought compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State refused both claims because the new evidence did not show beyond reasonable doubt that either claimant had not committed the offence.

The Divisional Court dismissed their claims for declarations that section 133(1ZA) was incompatible with article 6(2) of the Convention: [2015] EWHC 1565 (Admin). The Court of Appeal dismissed their appeals: [2016] EWCA Civ 355; [2017] QB 571.

The Supreme Court considered whether article 6(2) applied to the compensation scheme, whether it should depart from its earlier decision in Adams, and whether the statutory requirement to demonstrate non-commission of the offence was incompatible with the presumption of innocence.

1. Appeals dismissed by a majority of five to two. No declaration of incompatibility was made. Lord Mance, Lady Hale, Lord Wilson, Lord Hughes and Lord Lloyd-Jones concluded, by differing routes, that section 133(1ZA) of the Criminal Justice Act 1988 should not be declared incompatible with article 6(2) of the Convention. Lord Reed and Lord Kerr dissented.

2. Lord Mance held that domestic article 6(2) should not extend beyond preventing a public authority from suggesting, after an acquittal or discontinuance, that the defendant should have been convicted. Section 133(1ZA), and the decisions refusing compensation, contained no such suggestion. Even if article 6(2) had the wider application indicated in Strasbourg case law, there was no logical basis for treating the statutory criterion as incompatible. Lord Lloyd-Jones agreed. Lord Wilson and Lord Hughes also declined to adopt the wider Strasbourg approach.

3. Lady Hale considered that article 6(2) was engaged. She nevertheless held that incompatibility had not been established in these category (3) cases, where the fresh evidence meant that a reasonable jury might or might not have convicted. The Strasbourg court had found no violation in an equivalent case. A declaration was inappropriate where the provision might not invariably cause a violation and these appellants were unlikely to establish one.

4. The compensation inquiry concerns an additional statutory entitlement. A claimant whose conviction has been quashed remains acquitted, unconvicted and immune from punishment. Requiring proof that fresh evidence establishes non-commission of the offence does not reinstate the conviction or determine criminal guilt. The state may therefore resist a claim that the case falls within the compensated category without implying that the claimant should have been convicted.

5. The Court of Appeal (Criminal Division) decides whether a conviction is unsafe under section 2 of the Criminal Appeal Act 1968. It does not determine factual innocence and has no power to make a formal declaration of innocence. It may explain that evidence plainly exonerates an appellant where that is its genuine conclusion. Such statements should remain rare, and no adverse inference may be drawn from their absence. Eligibility under section 133 is for the Secretary of State.

6. Lord Reed, with whom Lord Kerr agreed, would have allowed the appeals. He considered that the necessary link between the criminal appeal and the compensation proceedings engaged article 6(2). In his view, section 133(1ZA) required an assessment whether an acquitted person had established innocence, thereby casting doubt on the acquittal. He would have declared the provision incompatible.

1. United Kingdom Supreme Court: By a majority of five to two, dismissed the appeals and refused declarations that section 133(1ZA) of the Criminal Justice Act 1988 was incompatible with article 6(2): [2019] UKSC 2.
2. Court of Appeal: Dismissed the appeals. It regarded itself as bound by Adams to hold article 6(2) inapplicable, but also held the provision compatible: [2016] EWCA Civ 355; [2017] QB 571.
3. Divisional Court: Dismissed the applications for declarations of incompatibility. It considered itself bound by domestic authority and, alternatively, held section 133 compatible with article 6(2): [2015] EWHC 1565 (Admin).