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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nealon & Anor, R (on the application) v The Secretary of State for Justice  EWHC 1565 (Admin) (08 June 2015)
Cite as:  EWHC 1565 (Admin),  CN 934
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
The Hon Mrs Justice Thirlwall
| R (on the application of Victor Nealon)
R (on the application of Sam Hallam)
|- and -
|The Secretary of State for Justice
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
Crown Copyright ©
Lord Justice Burnett:
"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)."
" 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.
 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.
 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.
 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."
"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 establish positively that your client was not at the murder scene on 11 October 2004. Indeed, the Court of Appeal found that it 'cannot establish a positive alibi for the night in question' (para 69). In all circumstances, the Secretary of State does not consider that this is a case that meets the statutory test for compensation under section 133 of the 1988 Act.
We further note in this regard that, whilst the Court of Appeal quashed Mr Hallam's convictions on the basis that they were unsafe, it expressly declined the invitation of Mr Hallam's counsel to exercise its discretionary power (as identified by Lord Judge in Adams  UKSC 18) to state that the new evidence demonstrated 'the factual innocence of the appellant'."
The letter concluded with this:
"It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt on the decision of the CA to quash your client's convictions. Mr Hallam is presumed to be and remains innocent of the charges. His application has been rejected as it does not meet the statutory test for compensation under section 133 of the 1988 Act."
i) A sample taken from the lower right front of the victim's blouse produced a full male DNA profile from what was probably a saliva stain. This was not Mr Nealon's DNA. It was from an "unknown male".
ii) Further stains were detected on the right and left cups of the victim's bra which were probably saliva. There was also other DNA material from the inside and outside of the bra. There was no scientific support to suggest that the DNA was Mr Nealon's.
iii) Orla Sower, a forensic scientist who had been instructed on behalf of Mr Nealon, said there was "a high degree of similarity" between what she found on the bra and the DNA of the unknown male. Dr Tim Clayton, instructed on behalf of the prosecution, considered that the unknown male may have been a contributor to that material. Rachel Morgan, of the Forensic Science Service, was instructed to review Orla Sower's work and suggested that there were consistencies between the samples from the blouse and from the bra.
iv) Complex mixtures of DNA were recovered from the victim's tights and skirt, each with at least three contributing individuals, of whom at least one was an unknown female. Whilst Mr Nealon shared some of the DNA components found in the mixed profile so too did a large proportion of the population. The failure to eliminate him from these samples had little significance.
"accepts that it is plausible that the perpetrator left little or no DNA on Ms E and that the DNA could have been deposited on the garments before Ms E wore them (as Dr Clayton has opined …)"
The central reasoning of the CACD is found between paras 34 and 36 of his judgment:
" The real, indeed the only, question on this appeal is the impact of the fresh DNA evidence, which we admit pursuant to section 23 Criminal Appeal Act 1968 given we are of the view that it is necessary and expedient to receive this expert evidence in the interests of justice. It is clear that unlike the situation in Hodgson the fresh evidence has not "demolished" the prosecution case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single "unknown male" had been found in some of the key places where the attacker had "mauled" the victim (in particular, the probable saliva stain on the lower right front of Ms E's blouse and probable saliva stains on the right and left cups of Ms E's brassiere) this could well have led to the appellant's acquittal. The relevant items of clothing had been bought recently (possibly from different shops); they may have been carried in different bags; and the police officers who attended the scene, the deceased's boyfriend and the scientists were all excluded as the source of the unknown DNA. Therefore, every sensible enquiry that could be made to identify a possible innocent source of the DNA has been made. It follows that the jury may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the "unknown male" – and not the appellant – was the attacker.
 We stress, therefore, that the effect of this material is to call into question the safety of the conviction because it might reasonably have led the jury to reach a different verdict (R v Pendleton  UKHL 66;  1 Cr App R 34,page 441 at paragraph 19). While Miss Whitehouse's submissions as to why the jury would have been entitled to reject the possibility that the "unknown male" was responsible for the attack provide a dimension to the debate that requires serious consideration, we have no doubt that the effect of the new evidence is that the case may have resulted in an acquittal. Miss Whitehouse's arguments do not go so far as to provide a basis for suggesting that the jury would have undoubtedly have reached the same conclusion if they had heard the evidence.
 We allowed the appeal and quashed the conviction at the end of the oral hearing. These are our reasons for that decision."
"However, on the basis of the information available, the Justice Secretary has concluded that your client has not suffered a miscarriage of justice as defined by section 133 of the 1988 Act. The Court of Appeal quashed your client's conviction on the basis that the introduction of new DNA material called into question the safety of that conviction. Although the new evidence shows that the DNA was from an "unknown male", this does not mean that it undoubtedly belonged to the attacker. Expert evidence for the prosecution at the appeal stated it was plausible that the attacker transferred little or no DNA from the victim's clothing during the commission of the offence, and that the DNA from the unknown male may not have been crime related. The Court of Appeal said that these arguments required 'serious consideration'. It also found that the original jury had been entitled to convict your client on the basis of the existing identification evidence (which was not at issue in the appeal). Whilst the Court of Appeal decided, ultimately, that the jury 'may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the 'unknown male' – and not the applicant – was the attacker', the court was explicit that the fresh evidence did not 'demolish' the prosecution evidence.
Having considered the judgment in the Court of Appeal, and your client's own submission, the Justice Secretary is not satisfied that your client's conviction was quashed on the ground that a new or newly discovered fact shows beyond reasonable doubt that your client did not commit the offence.
Although the Crown Prosecution Service did not seek a retrial, the reasons for this included the circumstance of the case, the length of time of a retrial which was not in the public interest and the fact that your client had already spent 17 years in prison."
The Arguments in Outline
The 1988 Act and Domestic Authority
"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 the law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."
What did Adams decide?
i) That the true meaning of "miscarriage of justice" was not restricted to circumstances where the new fact provided conclusive proof of innocence. It also included cases where a new or newly discovered fact showed that the evidence against the convicted person had been so undermined that no conviction could possibly be based upon it. In the course of the judgments these were referred to as Category I and Category II respectively.
ii) However, "miscarriage of justice" did not include circumstances where new evidence rendered a conviction unsafe in the sense that, had it been available at trial, a reasonable jury might or might not have convicted; or where something had gone seriously wrong with the investigation of the offence or the conduct of the trial, thereby resulting in the conviction of someone who should not have been convicted. These were referred to as Category III and Category IV (Mullen had been in Category IV).
"… that while the presumption of innocence guaranteed by article 6.2 of the Convention prevented a state from undermining the effect of a criminal acquittal, the procedure enacted by section 133 of the 1988 Act providing for the decision on entitlement to compensation to be taken by the executive was separate and raised different questions from the proceedings in a criminal court, and the refusal of compensation on the basis that the claimant has not proved beyond reasonable doubt that a miscarriage of justice had occurred would not infringe article 6.2."
In support of that part of the holding reference is made to para 58 in the judgment of Lord Phillips, paras 108 to 111 in the judgment of Lord Hope, para 181 in the judgment of Lord Kerr, paras 230 to 235 in the judgment of Lord Clarke and paras 255 and 256 in the judgment of Lord Judge, with whom Lords Brown and Rodger agreed at para 282, and Lord Walker agreed at para 284.
"The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him."
"The principle that is applied is that it is not open to the state to undermine the effect of the acquittal. What article 14.6 does not do is forbid comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim of damages, when it is necessary to find out what happened. The system that article 14.6 of the ICCPR provides does not cross the forbidden boundary. The procedure laid down in section 133 provides for a decision to be taken by the executive on the question of entitlement to compensation which is entirely separate from the proceedings in the criminal courts. As Lord Steyn pointed out in Mullen  1 AC 1, paras 41-43, in none of the cases from Austria or Norway, nor in Leutscher v The Netherlands 24 EHRR 181, was the court called upon to consider the interaction between article 6.2 and article 3 of the Seventh Protocol. On the contrary, the fact that the court was careful to emphasise in Sekanina v Austria, para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that, as Lord Steyn put it in Mullen, para 44, article 14.6 and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them. A refusal of compensation under section 133 on the basis that the innocence of the convicted person has not been clearly demonstrated, or that it has not been shown that the proceedings should not have been brought at all, does not have the effect of undermining the acquittal."
Lord Phillips dealt with the issue in para 58. He agreed with Lord Hope and also with the reasoning of Hughes LJ in R (Allen) v. Secretary of State for Justice  EWCA Civ 808;  1 CrAppR 2 at para 35, to which I shall return. Lord Phillips added:
"The appellants' claims are for compensation pursuant to the provisions of section 133. On no view does that section make the right to compensation conditional on proof of innocence by a claimant. The right to compensation depends upon a new or newly discovered fact showing beyond reasonable doubt that a miscarriage of justice has occurred. Whatever the precise meaning of "miscarriage of justice" the issue in the individual case will be whether it was conclusively demonstrated by the new fact. The issue will not be whether the claimant was in fact innocent. The presumption of innocence will not be infringed."
Lord Kerr agreed with Lord Hope on this topic: para 181. Lord Judge opened his observations in para 255 by saying:
"In my judgment the jurisprudence of the European Court of Human Rights drawn to our attention by Mr Owen does not bear on the issues which arise in this litigation."
Those were the cases dealing with the presumption of innocence considered in factual contexts which post-dated the discontinuance of criminal proceedings, an acquittal or a successful appeal. Lord Judge noted that none of those decisions was concerned with A3P7 (the analogue of article 14(6) ICCPR).
Allen in Strasbourg
"linked the two questions – the criminal responsibility and right to compensation – to such a degree that the decision on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision of the former, resulting in the applicability of article 6(2) to the compensation proceedings."
It continued by explaining that in other cases the court had found that the compensation claim "not only followed the criminal proceedings in time, but was also linked to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter". This resulted in linkage which imported the application of article 6(2). The court referred to the position when civil proceedings are launched by a victim against an acquitted defendant. Article 6(2) continues to apply, but has the necessary linkage only if a statement imputing criminal liability (rather than civil liability) is made: para 101.
"103. [T]he presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of the criminal proceedings in order to ensure that, as regards any charge which was nor proven, the innocence of the person in question is respected. This overriding concern lies at the root of the Court's approach to the application of Article 6§2 in these cases.
104. Whenever the question of the applicability of Article 6§2 arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link as referred to above, between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment; to engage in a review or evaluation of the evidence in the criminal file; to assess the applicant's participation in some or all of the events leading to the criminal charge; or to comment on the subsisting indications of the applicant's possible guilt.
105. Having regard to the nature of the Article 6§2 guarantee outlined above, the fact that section 133 of the 1988 Act was concerned to comply with the State's obligations under Article 14(6) ICCPR, and that it is expressed in terms that are almost identical to Article 3 of Protocol No. 7, does not have the consequence of taking the impugned compensation proceedings outside the scope of the applicability of Article 6 § 2, as argued by the Government."
"107 … In this respect, the Court observes that proceedings under section 133 of the 1988 Act require that there has been a reversal of a prior conviction. It is the subsequent reversal of the conviction which triggers the right to apply for compensation for a miscarriage of justice. Further, in order to examine whether the cumulative criteria in section 133 are met, the Secretary of State and the courts in judicial review proceedings are required to have regard to the judgment handed down by the CACD. It is only by examining the judgment that they can identify whether the reversal of the conviction, which resulted in an acquittal in the present applicant's case, was based on new evidence and whether it gave rise to a miscarriage of justice.
108. The Court is therefore satisfied that the applicant has demonstrated the existence of the necessary link between the criminal proceedings and the subsequent compensation proceedings under section 133 of the 1988 Act to ensure that the applicant was treated in the latter proceedings in a manner consistent with her innocence."
"If the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling with the ambit of Article 6 § 2 … " para 123
Fourthly, it referred to disciplinary proceedings which arise out of the same subject matter as criminal proceedings: para 124. The conclusions that followed were:
"125. It emerges from the above examination of the Court's case-law under Article 6 § 2 that there is no single approach to ascertaining the circumstances in which that Article will be violated in the context of proceedings which follow the conclusion of criminal proceedings. As illustrated by the Court's existing case-law, much will depend on the nature and context of the proceedings in which the impugned decision was adopted.
126. In all cases and no matter what the approach applied, the language used by the decision-maker will be of critical importance in assessing the compatibility of the decision and the reasoning with Article 6 § 2 … Thus in a case where the domestic court held that it was "clearly probable" that the defendant had "committed the offences … with which he was charged", the Court found that it had overstepped the bounds of the civil forum and had thereby cast doubt on the correctness of the acquittal … In cases where the Court's judgment expressly referred to the failure to dispel the suspicion of criminal guilt, a violation of Article 6 § 2 was established … However, when regard is had to the nature and context of the particular proceedings, even the use of some unfortunate language may not be decisive."
"The court is not therefore concerned with the differing interpretations given to that term by the judges in the House of Lords in Mullen and, after the judgment of the Court of Appeal in the present case, by the judges of the Supreme Court in Adams."
The ultimate conclusion was that there had been no violation:
"Both the High Court and the Court of Appeal referred extensively to the judgment of the CACD to determine whether a miscarriage of justice had arisen and did not seek to reach any autonomous conclusions on the outcome of the case. They did not question the CACD's conclusion that the conviction was unsafe; nor did they suggest that the CACD had erred in its assessment of the evidence before it. They accepted at face value the findings of the CACD and drew on them, without any modification or re-evaluation, in order to decide whether the section 133 criteria were satisfied." Para 135
"It is true that in discussing whether the facts of the applicant's case fell within the meaning of "miscarriage of justice", both the High Court and the Court of Appeal referred to the contrasting interpretations given to that phrase by Lords Bingham and Steyn in the House of Lords in R (Mullen). As Lord Steyn had expressed the view that a miscarriage of justice would only arise where innocence had been established beyond reasonable doubt, there was necessarily some discussion of the matter of innocence and the extent to which a judgment of the CACD quashing a conviction generally demonstrates innocence. Reference was made in this regard to the Explanatory Note to Protocol 7, which explains that the intention of Article 3 of that Protocol was to oblige states to provide compensation only where there was an acknowledgement that the person concerned was "clearly innocent". It is wholly understandable that … national judges should refer to … the understanding of their drafters. However, the Explanatory Note … does not constitute an authoritative interpretation of the text … Its references to the need to demonstrate innocence must now be considered to have been overtaken by the Courts intervening case-law on Article 6 § 2. But what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyn's test of demonstrating her innocence." Emphasis added.
i) The judgment left unresolved what could and could not be said in domestic civil compensation proceedings.
ii) He had hoped for a reassessment of article 6(2) in dealing with post-acquittal proceedings. Here the majority had opted for a mere compilation of cases and generic statements.
iii) The formulation that compliance amounted to "it all depends on what you say and how you say it" is just playing with words and is "most unhelpful". Similarly formulations that refer to context.
iv) In civil proceedings brought by a victim, the standard of proof may be different but the reality and the perception of all but lawyers if the claim succeeds is that a court is saying the defendant was guilty.
v) He considered that Article 6§2 "has no place whatsoever" in compensation proceedings following acquittal.
"The court's expansion of what would seem to be a rule intended to be part of the guarantee of a fair trial into something coming close to a principle of the law of defamation is one of the more remarkable examples of the fact that the Convention is a living instrument."
That was said in the context of his conclusion that article 6(2) had no bearing on section 133 of the 1988 Act. The Strasbourg Court has long interpreted article 6(2) in a way which takes its meaning well beyond its natural language and the original intention underlying it. The further step taken in applying it to compensation proceedings of the sort in issue in this case may not be altogether surprising.
i) that it amounts to a requirement that an applicant for compensation must prove his innocence; and
ii) that it is indistinguishable from Lord Steyn's test in Mullen which the Strasbourg Court disapproved; and
iii) that by implication the Strasbourg Court suggested and can be taken to have decided in Allen that his test was objectionable.
"… 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 the person did not commit the offence, 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 etc."
"I conclude that the autonomous meaning of the words "a miscarriage of justice" extends only to "clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent" as it is put in the explanatory report [of A3P7]. This is the international meaning which Parliament adopted when it enacted section 133 of the 1988 Act."
In para 62 of its judgment, the Strasbourg Court said, "as Mr Mullen was not innocent of the charge, he was not entitled to compensation under section 133". That is a fair reflection of what Lord Steyn himself said in his para 57. But it should not be understood as being divorced from the statutory language requiring an appeal against conviction to have been allowed on the basis of a new fact, and that new fact establishing a miscarriage of justice. Lord Steyn summarised the submission on behalf of the Secretary of State at para 34 of his speech as being:
"that the concept of a "miscarriage of justice" extends only to cases where a person who was convicted of an offence is later shown beyond reasonable doubt, by virtue of some new or newly discovered fact, to have been innocent of the offence of which he was convicted."
i) The Strasbourg Court decided in Allen that article 6(2) is applicable to compensation decisions made under section 133 of the 1988 Act, contrary to the conclusion of the Supreme Court in Adams.
ii) Whether or not that conclusion survives any re-examination of the sort favoured by Judge De Gaetano, the decision in Allen does not lead to the conclusion that the Strasbourg Court would necessarily consider section 133, as amended by the 2014 Act, to violate without more the presumption of innocence. On the contrary, in my judgment, there is no incompatibility.
iii) The claimants have not suggested that the language of the letters denying them compensation otherwise offends the reasoning in Allen relating to the language used.
Mr Nealon's Public Law Challenge
Mrs Justice Thirlwall