REFUSAL OF COMPENSATION DID NOT BREACH PRESUMPTION OF INNOCENCE

In today’s Grand Chamber judgment in the case of Allen v. the United Kingdom (application no. 25424/09), which is final, the European Court of Human Rights held, unanimously, that there had been: no violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights.

The case concerned the refusal to grant compensation to a mother acquitted of the manslaughter of her four-month old son, following the quashing of her conviction. The Court found in particular that the legislation under which Ms.Allen had requested compensation did not require her criminal guilt to be assessed and did not question her innocence. Furthermore, the UK courts had considered, as they were required to do under that legislation in order for compensation to be awarded, whether any “miscarriage of justice” had taken place and had concluded that the existence of a miscarriage of justice had not been established beyond reasonable doubt. They had not questioned the conclusion in her criminal appeal that her conviction was unsafe and had not commented on whether Ms.Allen should be, or would likely be, acquitted or convicted on the basis of the new evidence which had led to the quashing of her conviction. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered. Therefore the language used by the UK courts in their decisions to decide on compensation had not undermined Ms Allen’s acquittal or treated her in a manner inconsistent with her innocence.

 Principal facts

 The applicant, Lorraine Allen, is a British national who was born in 1969 and lives in Scarborough (the United Kingdom). On 7 September 2000 Ms Allen was convicted of the manslaughter of her four-month old son and sentenced to three years’ imprisonment. The conviction was based on evidence given at her trial by expert medical witnesses who testified that her son’s injuries were consistent with “shaken baby syndrome”, also known as “non-accidental head injury” (“NAHI”), because of the presence of a triad of intracranial injuries. In her appeal, Ms.Allen claimed that new medical evidence suggested that the triad of injuries could be attributed to a cause other than NAHI. In the meantime, she was released from prison, having served her sentence. On 21 July 2005 the Court of Appeal (Criminal Division) (“CACD”) quashed Ms Allen’s conviction on the grounds that it was unsafe. It found that the new evidence might have affected the jury’s decision to convict Ms Allen. The prosecution did not apply for a retrial given that, by the time Ms Allen appealed her conviction, she had already served her sentence and a considerable amount of time had passed. 1 Grand Chamber judgments are final (Article 44 of the Convention). All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Ms.Allen lodged a claim with the Secretary of State under section 133 of the Criminal Justice Act 1988, which provides that compensation shall be paid to someone who was convicted of a criminal offence but has subsequently had that conviction reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Her claim was refused on 31 May 2006. She brought judicial review proceedings challenging this decision. Her claim was dismissed by the High Court in December 2007. It concluded that the CACD had only decided that the new evidence, when taken with the evidence given at trial, “created the possibility” that a jury “might properly acquit” Ms.Allen. Her appeal was subsequently dismissed by the Court of Appeal in July 2008. Noting that the acquittal decision did “not begin to carry the implication” that there was no case for Ms.Allen to answer, the Court of Appeal concluded that the test for “miscarriage of justice” had therefore not been made out. Leave to appeal to the House of Lords was refused in December 2008. Complaints, procedure and composition of the Court Relying on Article 6 § 2 (presumption of innocence), Ms.Allen alleged that the reasons given in the decision not to award her compensation breached her right to presumption of innocence. The application was lodged with the European Court of Human Rights on 29 April 2009 and a statement of facts was communicated to the parties for observations on 14 December 2010. On 26 June 2012 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

 Decision of the Court

The Court explained that Article 6 § 2 did not guarantee a person acquitted of a criminal offence a right to compensation for miscarriage of justice. It therefore had first to examine whether Article 6 § 2 applied to the compensation proceedings. 3 It noted that Article 6 § 2 imposed certain procedural requirements in the context of a criminal trial. However, it also had a second aspect which was aimed at protecting individuals who had not been convicted of a criminal charge from being treated by public officials and authorities as though they were in fact guilty. Where criminal proceedings had concluded, an applicant seeking to rely on Article 6 § 2 in subsequent proceedings would have to show that there was a link between the two sets of proceedings. The necessary link was present in this case because the right to commence compensation proceedings was triggered by the applicant’s acquittal in criminal proceedings; and the authorities and courts making and reviewing the decision on compensation had to have regard to the judgment handed down in the criminal appeal. Article 6 § 2 was therefore applicable. As to whether the provision had been violated in a particular case, the Court emphasised the importance of the nature and context of the proceedings in which the decision which was being challenged was taken. The language used in the decision would be of critical importance. Turning to examine the nature and context of the proceedings in the applicant’s case, the Court noted that Ms Allen’s acquittal had not been an acquittal “on the merits” in a true sense. Although formally an acquittal, the termination of the criminal proceedings in her case shared more of the features present in a case in which criminal proceedings had been discontinued. It further noted that specific criteria had to be met under section 133 of the 1988 Act for the right to compensation to arise, namely: the claimant had to have been convicted; she had to have suffered punishment as a result; an appeal had to have been allowed out of time; and the ground for allowing the appeal had to have been that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. Nothing in these criteria called into question the innocence of an acquitted person and the legislation itself did not require criminal guilt to be assessed. In respect of the language used by the High Court and the Court of Appeal, the Court did not consider that, when viewed in the context of the exercise which the courts had been required to undertake under section 133, it had undermined Ms Allen’s acquittal or treated her in a manner inconsistent with her innocence. The courts had established whether there had been a “miscarriage of justice” and had not commented on whether, on the basis of the evidence as it stood at the appeal, Ms Allen should be, or would likely be, acquitted or convicted. Equally, they had not commented on whether the evidence was indicative of her guilt or innocence. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered. Moreover, under the law of criminal procedure in the United Kingdom it was for a jury in a criminal trial on indictment to assess the prosecution evidence and to determine the guilt of the accused. The CACD’s role in Ms Allen’s case was to decide whether the conviction had been “unsafe”, and not to substitute itself for the jury in deciding whether, on the basis of the evidence now available, her guilt had been established beyond reasonable doubt. The decision not to order a retrial had spared Ms Allen the stress and anxiety of undergoing another criminal trial. She had not argued that there ought to have been a retrial. 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 had been satisfied. 4 The Court was therefore satisfied that the judgments of the High Court and the Court of Appeal in Ms Allen’s case had not breached her right to presumption of innocence in respect of the criminal charge of manslaughter of which she had been acquitted. There had accordingly been no violation of Article 6 § 2.

Separate opinions Judge de Gaetano expressed a separate opinion which is annexed to the judgment.

Source: ECHR press release

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