European Court backs UK policy only to compensate wrongly convicted prisoners who can prove their innocence

Martin Shipton

A well-known Welsh miscarriage of justice campaigner has launched a petition after the European Court of Human Rights backed a decision of the UK Government only to compensate wrongly convicted individuals if they can prove their innocence.

The ruling means that most victims of miscarriages of justice will still be denied compensation in Britain.

A test case was brought to the ECHR by Sam Hallam and Victor Nealon, two men who between them served 24 years in prison for crimes they were later exonerated of. Neither was paid any compensation by the government despite new evidence being enough to overturn their convictions.

Since the law was changed a decade ago, payouts are only given to those who can prove innocence “beyond reasonable doubt”. Lawyers for Hallam and Nealon had argued it was often impossible to do so and contradicted the principle of “innocent until proven guilty”.

But a panel of judges in Strasbourg ruled by a majority of 12 votes to five that the test for denying compensation was not an unlawful challenge to the presumption of innocence.

Petition

Michael O’Brien, one of the Cardiff Newsagent Three who spent 11 years in prison for the murder of newsagent Phillip Saunders, immediately launched a petition to the Westminster Parliament calling for the law to be changed.

The petition says: “As a victim of a miscarriage of justice myself, and someone who did get compensation, I feel compelled to fight for justice for all those who have been wrongly refused compensation. A recent ruling by the European Court of Human Rights has confirmed a UK court decision that requires victims to prove their innocence before they are entitled to compensation after their convictions are overturned. This ruling undermines the presumption of innocence once the conviction is overturned at the Court of Appeal.

“Cases like Sam Hallam and Victor Nealon highlight this injustice. Both were victims of separate miscarriages of justice but were denied compensation under this unfair requirement. The law must be changed in Parliament to ensure that all victims receive fair treatment and rightful compensation without having to prove their innocence again.

“In the case of Victor Nealon there was DNA evidence that proved he was Innocent and pointed to another suspect and yet the government in all their wisdom said he was not innocent enough for compensation.

“Sign this petition to demand that Parliament restore the rights for victims and uphold true justice.”

The judgement in the ECHR case – backed by 12 judges with five against – said: “Finding that it could not be shown beyond reasonable doubt that an applicant had not committed an offence – by reference to a new or newly discovered fact or otherwise – was not tantamount to finding that he or she had committed the offence. Therefore, it could not be said that the refusal of compensation by the Justice Secretary attributed criminal guilt to the applicants. The Court concluded that the refusal of the applicants’ claims for compensation under section 133(1ZA) of the 1988 [Criminal Justice] Act had not breached the presumption of innocence.”

‘Virtually insurmountable’

The dissenting judges drew attention to the fact that most European states provide for compensation after a miscarriage of justice. By contrast the test in the UK was “virtually insurmountable” with more than 93% of applicants to the scheme being denied compensation. The court also noted the “highly undesirable attitude towards the presumption of innocence”.

The case was heard in Strasbourg last July after the men lost in the UK Supreme Court in 2019. It was being watched closely to see what power Europe has over the UK’s legal decisions.

Now the only hope for Mr Hallam, Mr Nealon and hundreds of others who have gone uncompensated will be fresh legislation from the next government. Mr Nealon’s lawyer, Mark Newby, said: “We call upon the new government to review the plight of our client together with the many other men and women who have suffered a miscarriage of justice ensuring they are given proper support applying a revised test that delivers fairness. After 17 years in prison simply giving someone a £46 travel warrant and dumping them at the train station cannot be right.”

Attempted rape

Mr Nealon spent 17 years in prison for attempted rape. The former postman served 10 years over his term because he maintained his innocence and his conviction was overturned after DNA evidence pointed to another attacker. His case echoes that of Andrew Malkinson, who spent 17 years in prison for a rape he did not commit. Mr Malkinson is now surviving on benefits but he has had assurances that compensation will be paid once he is ready to submit his case.

Mr Nealon’s mental health has been shattered after nearly three decades of fighting the justice system and he now lives abroad. He told the Guardian: “Before I went into prison my mental health was stable, I didn’t have any real problems with alcohol or drugs or anything like that. I had a relationship and it was going well at the time. I lost my mother and father while I was in prison. I couldn’t even say goodbye to them. In the blink of an eye, it was all taken away from me. ”

Flawed identification

Mr Hallam was 17 when he was jailed in 2005 for murder on the basis of flawed identification evidence placing him at the scene of the crime. His conviction was quashed in 2012 after his unexamined phone revealed crucial evidence of his whereabouts and 14 witnesses said he was not present.

Since his release from jail, Mr Hallam has received no compensation despite the Crown Prosecution Service dropping its opposition to the appeal and the Metropolitan Police apologising to him. He has suffered debilitating post-traumatic stress disorder and depression, which has stopped him working. In an interview with the Guardian last year, he said: “I’ve got really low. I have never tried to take my life but I’ve had suicidal thoughts.” He said that the refusal to pay compensation left him feeling that the government did not believe he was innocent.

In response to the Strasbourg judgment, Mr Hallam said: “For 20 years, the whole of my young adult life, I have been fighting a murder case of which I am entirely innocent. Still today I have not received a single penny for the seven and half years I spent in prison. The brutal test for compensation introduced in 2014 needs to be abolished, it goes completely against what this country should stand for.”

Mr Nealon said: “For 17 years I fought a case of which I am entirely innocent. Over 10 years later I have not received any compensation from the government for the life I lost, nor the mental agony inflicted on me. This is not justice, and I am appalled by the decision of the court today.”

Mr Hallam’s lawyer, Marcia Willis Stewart KC, said: “It cannot be right that in a just society there is no redress for years spent in custody. We will continue to bring pressure to bear on the government to amend the compensation scheme to enable Sam and others to obtain financial redress.”