R (on the application of Victor Nealon) and Another v The Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Justice Burnett,Mrs Justice Thirlwall
Judgment Date08 June 2015
Neutral Citation[2015] EWHC 1565 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/5272/2014 & CO/4240/2014
Date08 June 2015

[2015] EWHC 1565 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Rt Hon Lord Justice Burnett

The Hon Mrs Justice Thirlwall

Case No: CO/5272/2014 & CO/4240/2014

Between:
R (on the application of Victor Nealon)
R (on the application of Sam Hallam)
Claimants
and
The Secretary of State for Justice
Defendant

Heather Williams QC and Adam Straw (instructed by Birnberg Peirce and Partners) for Sam Hallam

Matthew Stanbury and Joseph Markus (instructed by Quality Solicitors Jordans) for Victor Nealon

James Strachan QC and Mathew Gullick (instructed by the Government Legal Department) for the Defendant

Hearing dates: 12 and 13 May 2015

Lord Justice Burnett

Introduction

1

Both claimants in these "rolled up" hearings of applications for permission to apply for judicial review were convicted of serious criminal offences and had their initial appeals against conviction dismissed. Their cases were later referred to the Court of Appeal Criminal Division ["CACD"] by the Criminal Cases Review Commission ["CCRC"]. The appeals were allowed. There is no connection between the claimants. Their cases have been listed together because they raise a common single issue arising from the decisions of the Secretary of State for Justice to refuse to pay them compensation under section 133 of the Criminal Justice Act 1988 ["the 1988 Act"] as amended by the Anti-social Behaviour, Crime and Policing Act 2014 ["the 2014 Act"]. Section 133(1) as originally enacted provided that:

"Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted."

The amendment introduced by the 2014 Act inserted a new section 133(1ZA) which defined "miscarriage of justice":

"For the purpose of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection 6H applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly)."

2

Both claimants argue that section 133(1ZA) of the 1988 Act is incompatible with article 6(2) of the European Convention on Human Rights ["ECHR"] because it violates the presumption of innocence. We are invited to make a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. Miss Williams QC developed a subsidiary argument that some form of declaratory relief should issue in the event that a declaration of incompatibility were made, to mark the fact that the decision in Mr Hallam's case was thus itself in conflict with article 6(2). However, since the Secretary of State was obliged to apply the statutory test, section 6 of the Human Rights Act 1998 confirms the legality of his actions in that regard. No further relief would be available. In Mr Nealon's case there is a subsidiary argument that the decision of the Secretary of State to refuse compensation was, in any event, vitiated on ordinary public law principles.

The Facts

Sam Hallam

3

Sam Hallam was convicted of the murder on 11 October 2004 of Essayas Kassahun in London. His conviction substantially rested upon the identification evidence of two witnesses, Miss Henville and Mr Khelfa. Mr Hallam provided an alibi which the prosecution said was a deliberate fabrication. His defence was that he was not at the scene of the murder. The person with whom he said he was at the time of the killing, Mr Harrington, did not support the alibi and denied having seen Mr Hallam at all in the days either side of the murder. In those circumstances, if the jury were satisfied that Mr Hallam had lied about his alibi (rather than being mistaken) they could rely upon that lie as providing support for the identification evidence. Mr Hallam's first appeal against conviction was dismissed by the CACD on 22 March 2007.

4

In July 2011 the case was referred back to the CACD on the grounds that new evidence cast doubt upon the identification evidence and also upon Mr Harrington's evidence that he had not been with Mr Hallam at all in the days surrounding the killing. The principal grounds were, first, that the identification witnesses had heard rumours that "Sam" had been involved in the killing. In the unused material there was information from Gary Rees that a different "Sam" was the subject of the rumour. Their identification evidence may have been influenced by the rumours. Secondly, a mobile telephone had been seized from Mr Hallam on his arrest but it was not examined at the time of his prosecution. Timed photographs on the telephone suggested that both Mr Hallam's recollection and that of Mr Harrington relating to the alibi were faulty and that the alibi may not have been fabricated. The photographs did not establish where Mr Hallam was at the relevant time.

5

The prosecution did not seek to uphold the conviction or seek a retrial. In giving the judgment of the CACD, [2012] EWCA Crim 1158, Hallett LJ summarised the position:

"[77] In our judgment the following summary encapsulates this appeal. The case against the appellant depended on the visual identification evidence of two witnesses, neither whom said anything in his or her initial statements to the police to indicate that they recognised the appellant (whom they knew) or anyone like him at the scene of the crime. Miss Henville's identification of the appellant was prompted by her friend. Mr Khelfa's identification of the appellant was prompted by Miss Henville. Neither was a particularly satisfactory witness. Their various accounts contained numerous internal inconsistencies and contradictions, and were contradicted by other evidence. Mr Khelfa's identification provided little, if any, independent support for Miss Henville's. The information in relation to the messages from Gary Rees raises the possibility of greater collusion (in the sense of discussion) between the witnesses than the defence team knew at the time. It also potentially puts paid to Miss Henville's assertion that from the outset there were rumours that Sam Hallam was involved. In any event, the purported recognition or identification of the appellant took place in very difficult circumstances. It amounted to little more than a fleeting glimpse. Thus, even if the witnesses had remained rock solid, consistent with each other and with the evidence of other witnesses, there was scope for a case of mistaken identity. Proper independent supporting evidence was essential on the facts here.

[78] We now know there is the real possibility that the appellant's failed alibi was consistent with faulty recollection and a dysfunctional lifestyle, and that it was not a deliberate lie. The proper support to the Crown's case has fallen away.

[79] Finally, there is the point (not spotted by anyone before these proceedings) that the jury may not have appreciated that they were free to rely upon the potentially exculpatory evidence of Bissett.

[80] In our judgment, the cumulative effect of these factors is enough to undermine the safety of these convictions. In those circumstances, it is not necessary to consider further the alleged failures in disclosure in investigation (which to our mind were nowhere near as extensive as Mr Blaxland asserted) nor the so-called positive evidence from witnesses who knew the appellant who say that he was not at the scene of the crime. However compelling they may have been, we doubt they could ever have established, as Mr Blaxland asserted, positive evidence that the appellant was not at the scene, albeit we accept that they may have established that, like so many others, two more witnesses did not see the appellant at the incident."

6

In para 49 Hallett LJ recorded that Mr Blaxland QC, who appeared for Mr Hallam in the appeal, had sought from the court a positive statement that the evidence showed Mr Hallam to be innocent. The CACD declined to make such a statement, whilst accepting that it could do so in an appropriate case.

7

The decision letter dated 14 August 2014 took a point that the failure to deploy the mobile telephone evidence at the trial was, at least in part, attributable to Mr Hallam. That was contested in subsequent correspondence and was not maintained as a reason for refusing compensation. The effective reason for refusal was explained as follows:

"In any event, the Secretary of State does not consider that the new evidence before the Court shows beyond reasonable doubt that Mr Hallam did not commit the offence. The CA concluded that the new evidence potentially placed your client away from the murder scene by showing your client with another person in the early evening of 11 October, and cast doubt on the concept that your client had deliberately created a false alibi for his whereabouts on the night of the murder. The CA view was that the cumulative effect of these factors was enough to undermine the safety of your client's convictions which were quashed on that basis. However, the fresh evidence does not...

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