R (on the application of Hallam) v Secretary of State for Justice; R (on the application of Nealon) v Secretary of State for Justice

The appeals concerned the statutory test for compensation under section 133 of the Criminal Justice Act 1988 as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 (which inserted section 133(1ZA)) and whether that test is compatible with the presumption of innocence in article 6(2) ECHR. The amended provision confines compensation to cases where the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (ie to cases of clear factual innocence as framed in Adams category (1)).

The court analysed: (i) the place of a finding of "innocence" in criminal appeals (the CACD quashes convictions on the basis that they are unsafe, not to pronounce factual innocence); (ii) authorities on the post-acquittal scope of article 6(2), in particular the Grand Chamber judgment in Allen v United Kingdom; (iii) the construction and effect of section 133(1ZA) and the Secretary of State's role in determining compensation claims under section 133(3).

The majority concluded that either article 6(2) does not operate so as to prohibit the statutory test (because the article is properly confined in application) or, if article 6(2) applies to such compensation decisions, section 133(1ZA) is not incompatible with it. The court therefore refused declarations of incompatibility and dismissed the appeals. Two members (Lords Reed and Kerr) dissented and would have granted declarations, holding that the amended test effectively required a post‑acquittal assessment of innocence incompatible with article 6(2).

Background and facts

• Mr Hallam was convicted of murder and related offences; some years later the Criminal Cases Review Commission referred his case to the Court of Appeal (Criminal Division) which quashed the convictions on safety grounds after fresh evidence (including mobile-phone photographs) undermined the prosecution case. He had served over seven years in custody.
• Mr Nealon was convicted of attempted rape; in proceedings following fresh DNA evidence the CACD quashed his conviction as unsafe; he had served 17 years in custody.

Procedural posture

• Both men applied for statutory compensation under section 133 Criminal Justice Act 1988. The Secretary of State refused, applying the statutory test introduced by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 which defines "miscarriage of justice" for section 133 purposes as where the new fact shows beyond reasonable doubt that the person did not commit the offence (section 133(1ZA)).
• They sought declarations of incompatibility under section 4 Human Rights Act 1998. Their applications were dismissed by the Divisional Court ([2015] EWHC 1565 (Admin)), and the Court of Appeal ([2016] EWCA Civ 355); they appealed to the Supreme Court ([2019] UKSC 2).

Nature of the claim and issues

• (i) Whether article 6(2) ECHR (presumption of innocence) is engaged in decisions on entitlement to compensation under section 133; and if so
• (ii) Whether the statutory definition in section 133(1ZA) (requiring proof beyond reasonable doubt that the applicant did not commit the offence) is compatible with article 6(2).

Court’s reasoning

• The court reviewed the common-law position that appeals courts determine whether convictions are "unsafe" rather than pronounce factual innocence, and considered the categories articulated in R (Adams) v Secretary of State for Justice.
• The majority examined Strasbourg jurisprudence, notably Allen v United Kingdom, Sekanina v Austria and related authorities, and concluded that either article 6(2) does not extend so far as to render the amended section 133 incompatible or that the statutory test could be applied compatibly without undermining an acquittal. The Secretary of State’s role in assessing whether a case falls within the statutory definition was central: the domestic scheme legitimately limits compensation to the clearest cases of factual exoneration and allows executive assessment subject to judicial review.
• The dissenting judges considered the Grand Chamber’s approach authoritative and concluded that the amended statutory test requires the Secretary of State to make an assessment effectively amounting to a post‑acquittal inquiry into guilt or innocence, contrary to article 6(2), and would have declared the provision incompatible.

Context and implications: the court engaged at length with the tension between prosecutorial/criminal standards of proof and post‑conviction civil or administrative processes. The judgments discuss the limited and rare circumstances in which courts may state that fresh evidence demonstrably establishes factual innocence, and the desirability of preserving that rarity when compensation is at issue.

Appeal dismissed. The majority held that either article 6(2) does not operate so as to invalidate the statutory scheme for compensation under section 133(1ZA), or, if article 6(2) has some post‑acquittal application, the 2014 amendment which confines compensation to cases where the new fact shows beyond reasonable doubt that the person did not commit the offence is not incompatible with article 6(2). The Secretary of State’s assessment role under section 133(3) does not improperly call into question an acquittal. Two dissenting judges would have declared the provision incompatible.

Convictions quashed by the Court of Appeal (Criminal Division): Hallam [2012] EWCA Crim 1158; Nealon [2014] EWCA Crim 574. Applications for declarations of incompatibility dismissed by Divisional Court: [2015] EWHC 1565 (Admin). Appeal to Court of Appeal dismissed: [2016] EWCA Civ 355. Final appeal to the Supreme Court: [2019] UKSC 2 (this judgment).