Sam Hallam and Another v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson,Lord Justice Hamblen,The Master of the Rolls |
| Judgment Date | 11 April 2016 |
| Neutral Citation | [2016] EWCA Civ 355 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 April 2016 |
| Docket Number | Case No: (1) C1/2015/2135 & |
[2016] EWCA Civ 355
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
LORD JUSTICE BURNETT & MRS JUSTICE THIRLWALL
(1) CO/5272/2014 & (2) CO/4240/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Dyson
( The Master of the Rolls)
Sir Brian Leveson
(THE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
and
Lord Justice Hamblen
Case No: (1) C1/2015/2135 &
(2) C1/2015/2145
The Queen, on the Applications of
Heather Williams QC and Adam Straw (instructed by Birnberg Peirce & Partners) for the First Appellant
Matthew Stanbury and Joseph Markus (instructed by Quality Solicitors Jordans) for the Second Appellant
James Strachan QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing dates: 9 & 10/3/2016
The Master of the Rolls:
The appellants 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. The appeals were allowed. Their claims in these proceedings 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. Section 133(1) as originally enacted provided that: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."
Section 133 was enacted to give effect to the UK's international obligations under article 14(6) of the International Covenant on Civil and Political Rights 1966 ("the ICCPR"), which was ratified by the UK in May 1976. There is an almost identical provision in article 3 of the Seventh Protocol ("A3P7") of the European Convention on Human Rights ("ECHR"). Article 14(6) of the ICCPR provides:
"When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.".
The term "miscarriage of justice" was not defined in the statute when originally enacted. This lack of definition gave rise to a series of cases in which the courts sought to interpret the meaning of the term, culminating in the Supreme Court decision in R (Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 AC 48, in which four categories of case were considered as candidates for satisfying the statutory definition. These were (1) where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted; (as reformulated by the Supreme Court) (2) where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it; (3) where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and (4) where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. By a majority, the Supreme Court held that the term included category 1 and 2 cases, but no other. The minority view was that the term was restricted to category 1 cases.
Following the previous uncertainty as to its meaning and the litigation that it had generated, Parliament inserted, with effect from 13 March 2014, a new statutory definition of "miscarriage of justice" in sub-section (1ZA) of section 133. The new definition applies to the appellants' applications for compensation in this case. Section 133 (1ZA) provides:
"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….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)."
The appellants contend that section 133 (as amended) of the 1988 Act is incompatible with article 6(2) of the ECHR. They seek a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 ("the HRA"). In Mr Nealon's case, there is a further argument that the decision of the Secretary of State to refuse compensation was, in any event, unlawful on domestic public law grounds.
Their claims were rejected by the Divisional Court (Burnett LJ and Thirlwall J): [2015] EWHC 1565 (Admin). Burnett LJ gave the only substantive judgment. The court gave both appellants permission to appeal against its findings that article 6(2) was not applicable to section 133 (as amended) and that was in any event compatible with article 6(2) of the ECHR. It refused Mr Nealon permission to appeal against its decision in relation to the public law challenge. Mr Nealon has renewed his application for permission to appeal on that ground.
The material facts are set out at paras 3 to 13 of the judgment of Burnett LJ. I reproduce this part of his judgment as an Annex to this judgment.
Summary of the Divisional Court's reasons for refusing a declaration of incompatibility
The Divisional Court held that (i) it was bound by the Supreme Court's decision in Adams and by the Court of Appeal's decision in R (Allen) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] 1 Cr App R 2 to hold that article 6(2) is not applicable to compensation decisions made under section 133 of the 1988 Act; (ii) despite the contrary decision of the Grand Chamber in Allen v United Kingdom (2013) 36 BHRC 1, it was not necessary or appropriate to grant permission to appeal to the Supreme Court because an argument based on the Grand Chamber decision that section 133 (as amended) offends against the presumption of innocence (if article 6(2) did apply) would be wrong.
Summary of the appellants' submissions
The appellants say that the Divisional Court erred in law in that (i) neither it nor the Court of Appeal is bound by Adams or the Court of Appeal decision in Allen to find that article 6(2) does not apply to compensation decisions made under section 133; (ii) Strasbourg authority, in particular the Grand Chamber decision in Allen, shows that article 6(2) applies to section 133 compensation proceedings; (iii) it is also clear from Strasbourg authority that the ECtHR would decide that section 133 (as amended) offends against the presumption of innocence; (iv) it follows that section 133 (as amended) is incompatible with article 6(2) and the court ought to grant a declaration of incompatibility; alternatively (v) if this court is bound by domestic authority to come to a different conclusion, then it ought to give permission to appeal to the Supreme Court: that is because any domestic binding authority is inconsistent with subsequent Strasbourg authority and it is necessary and appropriate for the Supreme Court to resolve this apparent inconsistency.
IS THIS COURT BOUND BY ADAMS TO HOLD THAT ARTICLE 6(2) DOES NOT APPLY?
The issue before the Supreme Court in Adams was: what was the true meaning of the phrase "miscarriage of justice" in section 133? The court decided by a majority of 5 to 4 that, having regard to article 14(6) of the ICCPR, the true meaning of the phrase in section 133 was that it included both category 1 and category 2 cases, but no other category. Lords Judge, Rodger, Walker and Brown held that the meaning of the phrase was restricted to category 1 cases.
The first question that the Divisional Court had to decide was whether it was bound by the reasoning of a majority of the judges in Adams that section 133 constituted a lex specialis in which article 6(2) of the ECHR had no part to play. If the Divisional Court was right to hold that it was so bound, then this court would be similarly bound regardless of whether, as Miss Williams QC submits to be the case, the Grand Chamber in Allen subsequently decided that article 6(2) does apply to section 133. It is not in dispute that, even if we consider that Miss Williams is right, we are obliged to adhere to our domestic rules of precedent and follow Adams: see Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465 at para 43.
It is, therefore, necessary to examine the judgments in Adams closely to see what was decided in that case about the applicability of article 6(2) to section 133.
Mr Adams' case was a category 3 case. He contended that the adoption of a narrow interpretation of section 133 (excluding category 3 cases) would involve a...
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