The greatest criminal barrister of all time, Sir Edward Marshall Hall KC, who probably saved more men and women from the gallows than anyone in English history, was famous for his 'scales of justice' speech, in which, as described in Sally Smith's magnificent biography, he would stand for several long minutes with his arms outstretched at shoulder height and say:
‘It may appear that the scales of justice are first weighed on one side in favour of the prisoner and then on the other against the prisoner. As counsel on either side puts the evidence in the scales, I can call to my fancy a great statue of Justice holding the two scales with equally honest hands. As the jury watch the scales they think for a moment that one scale and then the other has fallen and then again that they are so level that they cannot make up their minds which was lower or higher. Then in one scale, in the prisoner’s scale, unseen by human eye is placed that overbalancing weight, the presumption of innocence.’
With that, one hand would drop slowly to his side.
The fictional Rumpole had his 'golden thread' speech, in which he would remind the jury that the presumption of innocence was the 'golden thread running through English justice.'
Well it turns out, according to the Supreme Court's decision last week in Nealon & Hallam, that the scales of justice are now as reliable as a drug-dealer's crack scales and the golden thread has been spun by Ratners.
Sam Hallam had been convicted of murder. The case against him depended on identification evidence from a fast moving gang fight that took place in the dark. It was unsatisfactory for all sorts of reasons. But his defence relied on an alibi, and at the trial it was unconvincing. His appeal was dismissed, in part because the supposedly false alibi was considered capable of supporting the dubious identification evidence.
Years later, Mr Hallam's mobile phone was examined, as it should have been at the time, and it contained a picture which, whilst not being quite conclusive, strongly supported his alibi. After seven years in prison, his conviction was referred back to the Court of Appeal. While the appeal was being heard, the prosecution conceded that his conviction was unsafe. The Court agreed and Mr Hallam was released.
Victor Nealon was convicted of an attempted rape in Redditch in 1996. The evidence against him came from three people purportedly identifying him. None of the identifications on their own was remotely compelling, and one occurred not at a formal police lineup, but when – in breach of all good practice – one of the witnesses saw him in the police station with his solicitor. He immediately volunteered samples for DNA testing, but the police insisted that the victim's clothing contained nothing relevant. He was duly convicted, after the jury did not believe his alibi. He received a life sentence, with a minimum term of 7 years, and ended up serving seventeen years behind bars (he was denied parole because he refused to accept his guilt).
Sixteen years after his conviction, after even the Criminal Cases Review Commission – the organisation of last resort for the wrongly convicted – told him that testing the victim's clothing was a waste of time, he was finally able to have it examined by an independent expert. It turned out to be stained with the saliva of an unidentified man, on those very parts of her clothing that corresponded to where she said her attacker had touched and tried to kiss her. When the case was referred back to the Court of Appeal, the prosecution tried to argue that the unidentified saliva stains made no difference. The Court disagreed, the conviction was clearly unsafe, and Mr Nealon was released.
One would have thought that with their respective convictions overturned, the legal position would be clear: the presumption of innocence should mean that Mr Hallam and Mr Nealon would now be treated as innocent men. By any reasonable standard of justice, the state which had bungled their original investigations, prosecuted them on a basis that turned out to be false, withheld, or at least failed to obtain, vital evidence, and then held them in prison for seven and seventeen years on the basis of improperly obtained convictions should surely now compensate them?
Unfortunately, as a result of a provision in the Antisocial Behaviour, Crime and Police Act 2014, introduced by the then-Home Secretary Theresa May, compensation is no longer payable to victims of a miscarriage of justice, unless they can show 'beyond reasonable doubt' that they are innocent. In other words, in this area, they are still presumed guilty even though their convictions have been quashed. The existing rules for compensating such victims were already extremely onerous; this new rule meant that almost nobody, in practice, would ever be compensated.
Parliament is, of course, sovereign, and the Supreme Court had no power to overturn the clear meaning of the law; all Mr Nealon and Mr Hallam were asking for was a declaration that it was incompatible with the presumption of innocence set out in Article 6 of the European Convention on Human Rights. The Court – by a majority – held that it was not, essentially because Article 6 has no application once the criminal trial process has concluded.
But even leaving aside Article 6, a law requiring an acquitted person to prove their innocence beyond reasonable doubt is so repugnant to English legal tradition that it is astonishing it was nodded through the Commons by Conservative and Liberal Democrat MPs (the House of Lords had tried to amend the provision). The result is that should you have the misfortune, as Victor Nealon and Sam Hallam did, to be wrongly convicted for an appalling crime, the same state that prosecuted and wrongly convicted, sentenced and imprisoned you will then take no responsibility when it comes to putting matters right.
Having failed to achieve justice in this country, both men are now likely to bring their arguments before the European Court of Human Rights. There could be few more deserving cases.
Matthew Scott is a criminal barrister at Pump Court Chambers