Court Finds that the ‘Virtually Insurmountable’ Test for Compensation as a Victim of a Miscarriage of Justice Does not Breach Article 6(2)
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/00220183241292472 |
| Author | Paul Dargue |
| Date | 01 December 2024 |
Court Finds that the ‘Virtually
Insurmountable’Test for
Compensation as a Victim of a
Miscarriage of Justice Does not
Breach Article 6(2)
Nealon and Hallam v United Kingdom
(applications 32483/19 and 35049/19)
European Court of Human Rights Grand Chamber
Keywords
Miscarriages of justice, compensation,presumption of innocence,quashed convictions,Article 6 ECHR
Victor Nealon (N) and Sam Hallam (H), otherwise unconnected cases, were convicted, respectively, of
attempted rape and murder. After, in the case of N, 17 years, and H, seven years, their convictions were
quashed by the Court of Appeal (Criminal Division) on grounds of fresh evidence. N could point to DNA
evidence implicating another person; H could point to evidence leading to doubt he was on the scene at
the time of the murder. In both cases the Court of Appeal declined (as is customary) to state they were
innocent of the crimes; both have maintained their innocence.
Section 133 Criminal Justice Act 1988 provides eligibility for compensation when a conviction is
overturned by a new or newly discovered fact which shows beyond reasonable doubt there has been a
miscarriage of justice. Section 133(1ZA) defines a miscarriage of justice for the purposes of compensa-
tion as where the newly discovered fact shows ‘beyond reasonable doubt the person did not commit the
offence’.
Having had their convictions quashed, N and H applied for compensation under the statutory
scheme. That application was refused, and the appellants’appeals before the High Court, Court of
Appeal, and Supreme Court failed. Before the Supreme Court they sought a declaration that
s.133(1ZA) was incompatible with Article 6(2) of the European Convention on Human Rights
(ECHR); the presumption of innocence. The Supreme Court ([2020] AC 279), held by a majority
that the presumption of innocence remained relevant and applicable, but that its only relevance is
that a public authority is prohibited from suggesting the applicant should have been convicted of
the offence. The Court found further, by a majority, that even if (or to the extent that) Article 6(2)
did apply, it was not violated by s.133(1ZA) as the test’s requirement to consider whether a newly
discovered fact shows a miscarriage of justice had occurred (and the rejection of that assertion)
does not impute a suggestion that the applicant should have been convicted. Their appeals in the
Supreme Court were therefore dismissed by a 5:2 majority.
The appellants appealed to the European Court of Human Rights (ECtHR) seeking a declaration that
s.133(1ZA) was incompatible with Article 6(2) ECHR. They argued that s.133(1ZA) was incompatible
with the presumption of innocence because it required them to prove their innocence to be eligible for
compensation as a victim of miscarriage of justice [27].
Case Note
The Journal of Criminal Law
2024, Vol. 88(5-6) 389–393
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241292472
journals.sagepub.com/home/clj
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