R (on the application of Nealon) (Appellant) v Secretary of State for Justice (Respondent)

Cite as:[2019] UKSC 2
Hand-down Date:January 30, 2019
 
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Hilary Term [2019] UKSC 2 On appeal from: [2016] EWCA Civ 355

JUDGMENT

R (on the application of Hallam) (Appellant) v Secretary of State for Justice (Respondent) R (on the application of Nealon) (Appellant) v

Secretary of State for Justice (Respondent) before

Lady Hale, President Lord Mance

Lord Kerr Lord Wilson Lord Reed Lord Hughes Lord Lloyd-Jones JUDGMENT GIVEN ON 30 January 2019 Heard on 8 and 9 May 2018 Respondent

Appellant

(Hallam)

James Strachan QC Mathew Gullick (Instructed by The Government Legal

Department) Heather Williams QC

Adam Straw

(Instructed by Birnberg Peirce)

Appellant

(Nealon) Dinah Rose QC Matthew Stanbury (Instructed by Quality Solicitors Jordans)

Intervener (JUSTICE)

Henry Blaxland QC Jodie Blackstock (Instructed by White & Case LLP) LORD MANCE:

  1. These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. The provisions are contained in section 133 of the Criminal Justice Act 1988 ("the 1988 Act") as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). The central issue is whether they are compatible with the presumption of innocence as guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) ("the Convention").

    The factual background

    (1) Mr Hallam's case

  2. Mr Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder, following a gang fight in which another young man was killed. The case against him at his trial rested on identification evidence provided by two witnesses. The weaknesses in their evidence were such that independent supporting evidence was, in practice, essential. The only support was evidence from a Mr Harrington, denying that he had seen Mr Hallam either on the day of the murder or on the days surrounding it. That evidence was said to suggest that Mr Hallam had concocted a false alibi, since he had stated that he was with Mr Harrington at the time of the murder.

  3. Several years after the trial, the case was referred to the Court of Appeal Criminal Division ("the CACD") by the Criminal Cases Review Commission on the basis that fresh evidence had been discovered. That evidence included photographs found on Mr Hallam's mobile phone, showing him with Mr Harrington on the day after the murder. The phone had been seized from Mr Hallam at the time of his arrest but had not been examined. Hallett LJ, giving the judgment of the CACD, observed that this evidence changed the situation dramatically, in that "the evidence relied upon by the prosecution to support the identifying witnesses, namely the evidence as to false alibi", had been "significantly undermined" ([2012] EWCA Crim 1158, para 75). She went on (para 76):

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    "... we are now satisfied that any confidence that the appellant had lied and/or asked Harrington to concoct a false alibi was misplaced."

  4. Summarising the position (in para 77), the court noted that neither identifying witness had been "particularly satisfactory", with their "various accounts [containing] numerous inconsistencies and contradictions"; and that there was other fresh evidence comprising information provided to the police by a witness named Gary Rees, which had not been disclosed to the defence at the time of the trial, to the effect that another man with the same first name as Mr Hallam was rumoured to be responsible for the murder. The CACD stated (para 77):

    "The new information in relation to the messages from Gary Rees raises the possibility of greater collusion (in the sense of discussion) between the [identification] witnesses than the defence team knew at the time. It also potentially puts paid to [one of those witnesses'] assertion that from the outset there were rumours that Sam Hallam was involved."

    Returning to the alibi, the court noted (para 78) that:

    "We now know there is a 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 for the Crown's case has fallen away."

  5. The CACD also held (para 79) that, given the terms of the judge's direction, there was a possibility that the jury might not have realised that it was entitled to treat the evidence of another witness as potentially exculpatory of Hallam. In paras 80 and 83 it stated the conclusion that it drew from all the factors as follows:

    "80. In our judgment, the cumulative effect of these factors is enough to undermine the safety of these convictions. ...

  6. Accordingly, the result is that the conviction is unsafe and it must be quashed."

  7. Earlier in its judgment, the CACD recorded at para 49 that counsel appearing for Mr Hallam had invited it to state that he was innocent of the offences. The court cited a passage in the judgment of Lord Judge CJ in R (Adams) v Secretary of State

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    for Justice (JUSTICE intervening) [2011] UKSC 18; [2012] 1 AC 48, para 251, as setting out what Hallett LJ described as "the court's powers in this respect". The court declined to make such a statement, observing that "we were not satisfied it would be appropriate to use that power on the facts of this case".

  8. Mr Hallam spent seven years and seven months in prison prior to the quashing of his conviction. He applied for compensation under section 133 as amended. By letter dated 14 August 2014 the Secretary of State refused the application. The letter began by explaining the statutory test:

    "Following the coming into force of section 175 of the Antisocial Behaviour, Crime and Policing Act 2014, compensation under section 133 of the Act is only payable where a person's conviction has been reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence."

    The letter continued:

    "... 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 Secretary of State explained:

    "The CA [Court of Appeal] view was that the cumulative effect of [the fresh evidence] 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 ...

    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 [2011] UKSC 18) to state that the new evidence demonstrated 'the factual innocence of the appellant'."

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  9. Two factors were therefore of particular importance: first, that as the CACD had found, the fresh evidence did not establish positively that Mr Hallam was not at the murder scene on the night in question, and secondly, that the CACD had declined to exercise what was described as "its discretionary power" to state that Mr Hallam was factually innocent. The letter concluded:

    "It is important to emphasise that nothing in this letter is intended to undermine, qualify or cast doubt on the decision of the [Court of Appeal] 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."

    (2) Mr Nealon's case

  10. Mr Nealon was convicted of an attempted rape committed in August 1996. There was identification and description evidence from several witnesses which if accepted placed him in a club where the victim had previously been on the night of the offence, and near the scene of the attack. He denied that he had ever been to the club and gave evidence of an alibi. The victim gave evidence that the man who attacked her "mauled" her, tried to kiss her and put his hand inside her blouse over her bra. He was pulling at her tights and underwear. No DNA examination of her clothing was then carried out.

  11. The case was subsequently referred to the CACD by the Criminal Cases Review Commission on the basis of evidence of DNA found on an examination of her clothing carried out in 2010, nearly 14 years after the offence. A sample taken from the front of her blouse revealed a full male DNA profile from what was probably a saliva stain. It was not from Mr Nealon, but had been deposited by a man who was designated as the "unknown male". Further probable saliva stains were detected on both cups of her bra. They too had not been deposited by Mr Nealon, but were consistent with the DNA of the unknown male. An examination of her skirt and tights disclosed a complex mixture of DNA, including DNA from an unknown woman, and was inconclusive. Evidence was adduced on behalf of the Crown that the attacker might not have transferred any DNA to the victim's clothing.

  12. The victim was re-interviewed in connection with the new investigation. She said that she had bought the blouse and bra either on the day of the attack or a day or two before. This was the first time she had worn either garment in public. She had been in a relationship with a male partner at the time, and could not recall any consensual contact with any other man since she bought the blouse and bra. DNA

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    tests excluded the possibility that her partner, any of the officers involved in the investigation, any of the men who arrived at the scene of the attack shortly after it occurred, or any of the scientists involved in the original investigation, was the unknown male. It was argued by the Crown that the DNA...

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