Both claimants were convicted of serious criminal offences and had their initial appeals against conviction dismissed. In the first case the Criminal Cases Review Commission referred the claimant’s conviction for murder to the Court of Appeal (Criminal Division), which quashed it on the basis the safety of the conviction was undermined by the unsatisfactory nature of identification evidence and doubts as to whether the claimant’s alibi had been falsely made. In the second case the commission referred the claimant’s conviction for attempted rape to the Court of Appeal, which quashed it on the basis that the weakness of identification evidence and fresh DNA evidence taken from the victim’s clothing had had a substantial effect on the safety of the conviction. In both cases the Secretary of State refused the claimant compensation, under section 133 of the Criminal Justice Act 1988, as amended, on the basis that he had failed to show beyond reasonable doubt that the claimant had not committed the offence. The claimants’ claims for judicial review of the Secretary of State’s decisions, on the grounds that section 133(1ZA) of the 1988 Act (inserted by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 and providing that there has been a miscarriage of justice in relation to a person convicted of a criminal offence “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”) was incompatible with article 6.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms in that it infringed the presumption of innocence, were dismissed by the Divisional Court of the Queen’s Bench Division which held that (i) the court was bound by authority of the Supreme Court (and also of the Court of Appeal) to hold that article 6.2 of the Convention was not applicable to compensation decisions made under section 133 of the 1988 Act; and (ii) the statutory scheme under section 133 maintained the presumption of innocence, did not require the applicant for compensation to prove his innocence and that only if the Secretary of State was satisfied that the new fact conclusively showed his innocence was compensation to be paid. The court also refused the claimant in the second case permission to proceed with a claim for judicial review on the basis that the Secretary of State was obliged to carry out a full review of the material before him in a particular case to determine whether the claimant was innocent.
On the claimants’ appeals—
Held, appeals dismissed. (1) The Supreme Court having found that the presumption of innocence in article 6.2 of the Convention was not applicable to the operation of section 133 of the Criminal Justice Act 1988, that decision remained binding precedent on the point, as the Divisional Court had rightly found, regardless of any subsequent observations of the Grand Chamber of the European Court of Human Rights and later cases in that court, so that the appeals were bound to be dismissed (paras 21, 23).
R (Adams) v Secretary of State for Justice (JUSTICE intervening) [2012] 1 AC 48, SC(E) applied.
Allen v United Kingdom (2013) 36 BHRC 1, GC considered.
(2) Even if the presumption of innocence in article 6.2 of the Convention were applicable to section 133 of the Criminal Justice Act 1988, as amended, that section was not incompatible with it because, critically, the section did not require an applicant for compensation to prove his innocence generally. The key issue for the purpose of establishing eligibility for compensation was the effect of the new or newly discovered fact which had lead to the conviction being quashed on appeal. The assumption was that the Secretary of State proceeded on the basis that the applicant had been acquitted of the offence and was entitled to be treated as innocent in consequence. He was only required to look at whether the new fact showed beyond reasonable doubt that the applicant had not committed the offence, the statutory focus of the section in both its original and amended versions being on the effect of the new fact and nothing else. Such a focus was central to the underlying object of limiting eligibility to compensation to a narrower category of cases than the entire corpus of cases where a convection had been quashed. The fact that the Secretary of State was not persuaded beyond reasonable doubt by the new fact that an applicant was innocent did not mean that he cast doubt on the applicant’s innocence generally, rather he was merely saying that the applicant’s innocence had not been proved by the new fact (paras 48, 50). Innocence was presumed in all cases where a person was applying for compensation, the conviction having been quashed (paras 52, 48, 70–72).
Per curiam. Had the court not been bound by the Supreme Court decision, since the line of European Court of Human Rights jurisprudence that article 6(2) applies to claims for compensation following the quashing of convictions is so clear and constant, the Court of Appeal should have followed it (para 34).
Decision of the Divisional Court of the Queen’s Bench Division [2015] EWHC 1565 (Admin) affirmed.
Heather Williams QC and Adam Straw (instructed by Birnberg Peirce & Partners) for the first claimant.
Matthew Stanbury and Joseph Markus (instructed by Quality Solicitors Jordans, Doncaster) for the second claimant.
James Strachan QC and Mathew Gullick (instructed by Treasury Solicitor) for the Secretary of State.