When summing up any case to a jury, one of the first things a judge has to explain is that although it is for the jury to decide the facts of the case, they must follow the judge’s directions of law. A favourite cliché of many is then to say “if I am wrong on the law a higher court will put it right.”
“Phew,” the jurors are meant to think, “we can trust that even if this old fool has got the law wrong, no harm will come of it because that ‘higher court’ will make everything right again.”
Victor Nealon and Sam Hallam learnt last week from the Supreme Court what they must have guessed already: the promise that a higher court will put wrongful convictions right is hollow. And although there is statutory provision for the state to atone with compensation for subjecting innocent people to wrongful convictions and imprisonment, it is worded in such a way that compensation can virtually never be paid. It is a bogus, Potemkin provision of no practical effect.
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In the small hours of the morning of August 9th 1996 a young woman, we can call her Ms E, was the victim of an appalling attempted rape as she walked home with a friend from Rackets, a Redditch night-club. Her attacker had followed her out of the club, grabbed her from behind and started to maul her under her blouse. He tried to kiss her. She passed out, but recovered consciousness lying on the ground as the man had his penis out, preparing to rape her. Somehow she fought back, and eventually the attacker ran off. She noticed that her blouse which had previously been buttoned up, was now open.
She called the police and was able to give a description of him, the most striking part of which was that he had a “lump” on his forehead. The police sealed the clothing she had been wearing in evidence bags, and set about looking for the attacker.
Her friend also described a man in his thirties or forties, with a lump on his forehead, along with small lips and an “evil looking face.” Other witnesses gave similar descriptions of a man who had been in or just outside the night-club, with a lump or prominent mark over his forehead, although the lump was variously described as “like a scratch” or “half the size of a hen’s egg,” and said to be on the left, on the right, above, or more or less in the centre of the forehead. Some of them thought he had other marks on his face as well.
About 6 weeks later Mr Nealon was arrested on suspicion of having committed the attempted rape. He was 36. He has the misfortune to have suffered acne in the past, and as a result had what was described as a “distinctive pockmarked face.” In June he had been in a scuffle which led to him getting a lump on his head (although not his forehead). There was no evidence that it was still there by August when Ms E was attacked: in fact there was plenty of evidence that it was not, including from his probation officer who had seen him three times both shortly before and very shortly after the attack and had noticed no lump, prominent or otherwise.
But where had he been on August 9th?
It’s February 6th today, and if, innocent reader, I locked you up in a police station on suspicion of rape, and asked you where you were on, say, December 18th I doubt that many of you could tell me with much confidence, just as Mr Nealon could not say for sure where he had been on the night of August 8th / 9th 1996. He was sure, though, that he had never been to Rackets, and thought that he was was probably at home with his girlfriend. He offered to give samples for DNA testing.
Highly suspicious, thought the police. Here’s a man with a pockmarked face, who once had a lump on his head and who can’t remember for sure what he was doing 6 weeks earlier. Let’s put him on an ID parade.
There are extremely strict rules on the conduct of identification procedures, which are meant to ensure (amongst other things) a complete separation of the police officers running the identification procedures from the other investigating officers. The rules are even stricter now than they were in 1996, but they were strict enough then.
Nowadays most identification procedures are carried out on video but in 1996 they were still done in the traditional way. A parade of volunteers (“distractors” in the jargon) looking broadly similar to Mr Nealon was assembled, and the various witnesses were asked whether they recognised anyone from the night of 8th/9th August.
The results were mixed. Seven witnesses took part (they did not include Ms E who for some reason wasn’t asked to attend the parade). Most of them either picked out someone else or nobody at all. Ms E’s friend, for example, who was looking for an “evil looking face,” passed over Mr Nealon and picked out one of the distractors. Three did pick out Mr Nealon, sort of, as someone they had seen beforehand in or near the club. However, of the three one said he was “uncertain” while another did so not on the parade itself, but when (in breach of all the rules) he saw Mr Nealon with his solicitor after the parade had concluded. Only one of the seven witnesses made an unequivocal identification at the parade; a barmaid who said she had served him in the club. Yet she had had no particular reason to remember him, whoever it was she saw was just another customer: nor had she, when first spoken to, made any mention of a “lump” on the customer’s forehead, the most distinctive thing about the attacker’s appearance, although she did say she recollected this when she came to give evidence in court.
Identification evidence has long been recognised as notoriously unreliable. Starting with the case of Adolf Beck over one hundred years ago, there have been numerous cases of misidentification leading to wrongful convictions. Many people erroneously believe that their ability to recognise people is much greater than it really is, and jurors can find such evidence, especially if confidently delivered, simple to understand and very persausive. Unfortunately, the confidence with which identification evidence is delivered is not necessarily correlated with its accuracy. As a result, ever since the case of Turnbull (1976) 63 Cr.App.R. 132, judges have been obliged to warn jurors, amongst other things, that it is possible for a mistaken but honest witness to appear convincing, that a number of witnesses can all be wrong about an identification (as they were in Beck’s case), and that mistakes in identification can easily happen even when people purport to recognise a friend or acquaintance. Judges are meant to withdraw weak and uncorroborated cases from the jury. Nevertheless, the law is clear: as long as juries are properly warned, they are allowed to convict on the strength of identification evidence alone, and – which was no doubt relevant here – they are told that one purported identification witness can support another. This means that a number of individually dubious identifications can sometimes support each other.
After his police interview Mr Nealon remembered what he had been doing on the night: he had stayed at home watching videos. Most defence lawyers dislike running alibi defences, because they tend to have the psychological effect of placing a burden of proof on the defendant and the slightest inconsistency tends to be taken as an indication of dishonesty by jurors. So it seems to have been here. There was some inconsistency over exactly which videos were rented out and when, and the upshot was that the jury did not believe him. The dubious identification evidence was now supported by the suspicion of a false alibi and Mr Nealon was duly convicted.
The judge imposed a life sentence: undeniably the perpetrator of the crime was a very dangerous man. He ordered that he should serve at least 7 years before being considered for parole.
Mr Nealon’s first appeal failed. His principle argument was that the identification evidence was so feeble that the trial judge should, as a matter of law, have dismissed the case at the close of the prosecution evidence. “No,” said the Court of Appeal, the judge was right to leave the decision to the jury. There was, as the Court almost always says when upholding a conviction, “abundant” evidence against Mr Nealon.
In most cases that would have been that. You only get one chance at an appeal and once it has been dismissed you cannot appeal again, even with fresh evidence, unless your case is referred by the Criminal Cases Review Commission.
After losing his appeal, Mr Nealon tried to interest the CCRC in his case. The police said DNA tests had been done on Ms E’s clothing, but they that they were “inconclusive,” the sort of police-speak weasel-word that, along with “negative results,” or “irrelevant” should encourage defence lawyers to think they are asking the right questions. Let’s look again at the DNA tests, said Mr Nealon. “No point,” said the CCRC. More DNA tests would be simply “speculative.”
Finally, after many years behind bars, with no prospect of parole because of his refusal to acknowledge his guilt, Mr Nealon instructed determined solicitors who knew what they were doing.
The CCRC were contacted for a third time. Finally, the CCRC made the police release E’s bra and blouse. They were still in their original evidence bags, indicating that they had never been examined at all. The CCRC’s examination revealed no link to Mr Nealon, but DNA from an unknown man in saliva stains on the inside and outsid of the bra and the front of the blouse. The bra had been newly bought on the day before the attack, and tests on the known men who could have come into contact with it – Ms E’s boyfriend, men from the club, police officers and scientific staff who might have inadvertently handled it – all came back negative. Ms E couldn’t remember for sure whether she had bought the blouse from the same shop as she had bought the bra, but it seemed unlikely. It was also probable (though Ms E could not say for sure) that she had bought them on different days, making cross. The obvious inference was that the saliva was likely to have been left on the clothing by her attacker, as he mauled and tried to kiss her just before and after she passed out.
At last, with many apologies to Mr Nealon for having rebuffed him for so long, the Criminal Cases Review Commission referred the case back to the Court of Appeal. The prosecution still did not concede the appeal: an attempt was made to pooh-pooh the evidence of the unknown man’s DNA: maybe it wasn’t from the attacker at all, maybe it was from some unidentified man who had packaged the bra and the blouse. Maybe the unidentified man was a complete red herring. Somewhat brazenly they argued that the new DNA evidence wouldn’t have made a hoot of difference to the jury’s verdict, they said. But this time the Court of Appeal disagreed.
“… 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, as well as other DNA material on the inside and outside of the brassiere) this could well have led to the appellant’s acquittal.”
After serving 17 years in prison on evidence now shown to be woefully inadequate, Mr Nealon was free.
Surely now, he could look forward to Her Majesty’s government paying him compensation for having wrongly branded him a dangerous rapist, and for having locked him up for 17 years for a crime which he did not commit? After all, it was in the name of Her Majesty that he had been charged, prosecuted and unjustly punished. It was representatives of Her Majesty’s Constabulary who had seemingly bungled the original investigation so that no DNA tests had been carried out. It was representatives of Her Majesty who had opposed his first appeal, helping to ensure that an unsafe conviction was sustained; and to cap it all, it was representatives of Her Majesty who had argued, implausibly, that his conviction was still safe despite the discovery of the unknown man’s saliva on two separate pieces of the victim’s clothing where she had been pawed and mauled by her attacker. It would not give him his lost years back, but presumably the least Her Majesty could now do was to make recompense for the appalling wrong to which he had been subjected?
Mr Nealon was discharged from Wakefield Prison – a category A prison for the most dangerous men – and he was given, like any discharged prisoner, £46.00. That was the only recompense Her Majesty’s government was prepared to make for an appalling, bungled investigation, for an unfair trial, for a conviction which ought never to have happened, for a first appeal which failed and for keeping Mr Nealon, a man who should never have been charged, let alone convicted, in one of Britain’s nastiest prisons for over seventeen years.
It may not surprise you to learn that the Minister of Justice charged with making the decision on his compensation was Rt Hon Christopher Grayling, and the answer was “no, we won’t give you a penny in compensation. You may be innocent in the eyes of the law, but you can’t prove you didn’t do it, can you?”
This sounds extraordinary, and so it is.
It is true that Mr Nealon could not prove he had not done it. I could not prove that I had not done it. For that matter I very much doubt that Mr Grayling himself could prove that he had not done it, although of course the chances are very high that he did not. The important difference between us and Mr Nealon is that that unlike him we have not been convicted and locked up for 17 years by the state, after a trial and an appeal which turned out to have been conducted on a demonstrably unfair basis.
Exactly the same arguments apply to Mr Hallam, Mr Nealon’s co-appellant, although he was “lucky” enough to have served only 7 years of his life sentence for murder before his conviction was overturned. Coincidentally, he too was the victim of flawed identification evidence, and he too ran an alibi that was apparently discredited at the trial. Evidence obtained long after his conviction showed that his alibi was not flawed as the prosecution had been able to argue at his trial, and just as with Mr Nealon, that evidence should have been available at the trial.
The principle that you are presumed to be innocent unless and until you are convicted, after a fair trial, turns out, in practice, to be a different principle altogether: for the purposes of compensation, once you are convicted your conviction is deemed to be correct. You are presumed guilty for the rest of your life, irrespective of whether your trial was fair or unfair. It makes no difference that your conviction has been quashed. It makes no difference that new evidence – which ought to have been obtained by the police before your trial – shows that you are probably innocent. Those acting on behalf of the state may have bungled the investigation, and possibly even bent the rules to get you convicted. None of that is of any consequence. All that matters is whether you can prove that you suffered a “miscarriage of justice:” see Criminal Justice Act 1988 S.133 (1). Even as originally enacted, this was a law that had been denounced by, for example, Professor John Spencer QC (the doyen of criminal law academics) as “monstrous.”
Under an amendment to the Criminal Justice Act 1988 (S.133 (1ZA) since you ask) introduced by Theresa May in 2014, a monstrous law was made even worse. The expression “miscarriage of justice” was defined to restrict it to cases where the claimant can prove:
“beyond reasonable doubt that [they] did not commit the offence.”
This is, of course, the criminal standard of proof, grafted onto what is in essence a civil claim based on unjust treatment at the hands of the state. Nowhere else in English law does a person seeking compensation for a wrong have to prove their case to such a high standard. Nowhere else in Europe sets such an impossibly high bar to compensate those wrongly imprisoned.
A characteristically slippery attempt to explain the rationale behind this lamentable provision was given by Theresa May when, as Home Secretary, she introduced it in 2013:
“We have … clarified the test for determining eligibility for compensation when someone has been the victim of a miscarriage of justice. … As well as providing greater certainty, the new statutory test will ensure that compensation is paid only to those who are clearly innocent.”
There was not the slightest evidence that under the existing statutory scheme compensation was being paid to the guilty: indeed, in the 4 years immediately preceding 2013 compensation payments, averaged one and a half people per year, and no-one suggested that any of them were in fact guilty. Hundreds of people every year had their convictions quashed: hardly any of them were paid compensation.
In an amendment tabled by the barristers Lord Pannick and Lady Kennedy, the House of Lords proposed a different test: that a miscarriage of justice should include the situation in which the case against the claimant “is so undermined that no conviction could possibly be based on it.” As they pointed out, none of the victims of the most notorious miscarriage of justice cases that have blighted the criminal justice system over the past decades, the Guildford 4, the Birmingham 6, Sally Clark, Angela Cannings, would have been able to prove their innocence beyond reasonable doubt. Needless to say, though passed by the House of Lords, the Government restored the “beyond reasonable doubt” test in the House of Commons.
Nealon and Hallam argued in front of the Supreme Court that this test violated the presumption of innocence set out in Article 6 (2) of the European Convention on Human Rights:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The requirement to prove their innocence beyond reasonable doubt in order to obtain compensation should, they argued, be declared incompatible with Article 6. Although there was case-law from the European Court of Human Rights that seemed to support this argument, the majority of the Court upheld the Government’s case that the compensation rule was in fact compatible with Article 6; the reasoning is rather complex and at times not easy to follow, but in essence the majority opinion was that the Article 6 presumption of innocence applied only to the criminal trial process itself, not to a claim for compensation for a wrongful conviction brought after the criminal trial was complete.
Their last hope of obtaining compensation from the Government will be to take their cases to the European Court of Human Rights, although Mr Nealon, at least, is now intending to sue the police for failing to investigate his case properly.
As a strict matter of law it is not easy to criticise the Supreme Court. The wording of Article 6, referring as it does to “a person charged with a criminal offence …” does indeed appear to contemplate the trial process itself, rather than post-acquittal applications for compensation, although (as the Court itself all but acknowledged) the case of Allen v. United Kingdom (2013) 63 EHRR 10 suggests that the ECtHR may take a less restrictive approach.
But even if the Supreme Court got the law right (and there were two dissenting judgments), as a matter of policy the situation in which the wrongly convicted find themselves is now a national disgrace. The glib suggestion that “a higher court will put things right” is embarrassing. The higher courts will, very occasionally, quash convictions: but that does not put things right for those who have lost their homes, jobs, families, friends, savings, reputation and health as a result of punishment to which they should never have been subjected.
It is still too early to know exactly how Theresa May will be judged by posterity. Along, perhaps, with Brexit, amongst her other legacies are a lie about a cat, a never ending inquiry generated by a moral panic about a non-existent Westminster paedophile ring, a “hostile environment” for immigrants and foreigners, and quite possibly the disintegration of the Conservative Party that so foolishly allowed her to lead it.
Not many people have been affected, as Mr Hallam and Mr Nealon have, by her change in the law about compensating the wrongly convicted. Even before 2014 only a handful of people ever received compensation anyway, and the annual total paid out never amounted to more than a few million pounds. Yet the casual trashing of a central and cherished principle of English law, the callousness towards the victims of wrongful convictions, and the sheer calculated petty-minded meanness of S.133 (1ZA) distinguish it as one of the most disgraceful pieces of legislation ever to make it onto the statute book.