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Judgments as to the moral culpability and answerability of agents for their conduct turn centrally on the judgments as to their actual “guilt” or “innocence”. Certain strains of religious thought –  notably the doctrine of “original sin” as formulated by Augustine of Hippo (and given new life on the Calvinist reformations of the 16th century CE)  – were based on a vision of an unredeemed and unregenerate humanity, fatally flawed by its irresistible tendency to wrongdoing and, effectively, applied a presumption of individual (moral) guilt.   But as a matter of establishing individual liability under the criminal law, the legal systems of the United Kingdom proceed on the basis of what is commonly termed a presumption of innocence.   Thus Article 6(2) of the European Convention on Human Rights (“ECHR”) sets out the general principle that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law” and Article 14(2) of the International Covenant on Civil and Political Rights (“ICCPR”) is in similar terms.

This principle of “presumed innocence” is translated as a matter of criminal procedure in the UK into:

(1) the placing of an onus on the prosecution authorities to prove their case against an accused in a criminal trial beyond reasonable doubt;

(2) the principle that an individual can be convicted after a criminal trial if, and only if, the jury returns a guilty verdict against him or her; and

(3) the rule that if the prosecution fails to establish the case against the accused to the requisite evidential standard, then the verdict which must be pronounced is one of “not guilty” (although exceptionally, in Scotland a jury may also return a verdict of “not proven”) and the accused then acquitted of the crime.

The UKSC appeal in R (Adams) v Secretary of State for Justice is, however, concerned with the question as to whether the law can properly make a further distinction in a “not guilty” verdict between: (1) those who benefitted from a “not guilty” verdict because they were, in truth, “innocent” of the offence for which they were tried; and (2) those in respect of whom a “not guilty” verdict has had to be pronounced as a matter of law but only because, for whatever reason, the case against them could not be established to the requisite legal standard in court.   In effect, a distinction is sought to be made between the “undeserving” and the “deserving” acquitted; between those who got away with it, and those who didn’t to it.

This might be thought to be an odd distinction for the law to try to make given that, as we have seen, there is no mechanism for the jury to make any findings of actual innocence.   A verdict of “not guilty” means, in every case, no more than that the prosecution authorities have failed to establish the case brought by them against an accused.    This failure may be due to the fact that there was, on examination, no evidence against the accused; or that such evidence as existed against the accused could not lawfully be produced or relied upon in court; or that the weight of the available evidence pointed to the conclusion that the accused did not, and/or could not, have committed the crime of what he or she was charged.   But the issue of “actual innocence” and opposed to what may be thought of as the legal fiction of “presumed innocence” has been raised in the Adams appeal because of the compensation provisions of Article 14(6) ICCPR which states that:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”

This right to compensation when a punishment has been imposed following a wrongful conviction subsequently shown conclusively to have been based on a miscarriage of justice was translated into all of the domestic legal systems of the United Kingdom (England and Wales, Northern Ireland, and Scotland) by the terms of Section 133 of the Criminal Justice Act 1988 which applies throughout the UK.   This, so far as relevant provides as follows:

“133  Compensation for miscarriages of justice

(1)    [W]hen a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

…

(3)     The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4)     If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

(4A)     In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to–

(a)     the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

(b)     the conduct of the investigation and prosecution of the offence; and

(c)     any other convictions of the person and any punishment resulting from them.”

The issue before the UK Supreme Court is this: can compensation under this provision lawfully be refused if the Secretary of State is of the view that the applicant whose criminal conviction has been quashed really just got off on a technicality and wasn’t really “innocent” of the offence for which he was convicted at all ?   This very question was considered by the House of Lords only seven years ago in R. (Mullen) v. Secretary of State for the Home Department [2004] UKHL 18, [2005] AC 1 where their Lordships unanimously upheld the lawfulness of the  refusal of the Secretary of State to award compensation to the claimant whose conviction in the UK of conspiracy to cause explosions in respect of which he was sentence to thirty years imprisonment was quashed after he had been in prison for ten years on the ground that his deportation from Zimbabwe to the United Kingdom to stand trial had involved an abuse of process and rendered his conviction unsafe.    The five strong House of Lords bench did not agree on the reasons for upholding the Secretary of State’s decision with  Lord Bingham of Cornhill and Lord Steyn adopting quite different tests.

Thus Lord Bingham observed as follows (at paragraph 4):

The expression “wrongful convictions” is not a legal term of art and it has no settled meaning.  Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted.  But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials.  It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been.  It may be because the evidence against him was fabricated or perjured.  It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld.  It may be because the jury was the subject of malicious interference.  It may be because of judicial unfairness or misdirection.  In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted.  The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

While Lord Steyn considered that a stricter test should be applied, noting at paragraphs 55-6:

55 Schiemann LJ observed, at p 1007, para 43, that our criminal law system “does not provide for proof of innocence”.  Sometimes compelling new evidence, e g a DNA sample, a forensic test result, fingerprints, a subsequent confession by a third party who was found in possession of the murder weapon, and so forth, may lead to the quashing of a conviction.  The circumstances may justify the conclusion beyond reasonable doubt that the defendant had been innocent.  Sometimes the Court of Appeal makes it clear (see R v Fergus (1994) 98 Cr App R 313, 325) and sometimes it can be inferred from the circumstances.  The interpretation which I have adopted is therefore perfectly workable. ….

56 I conclude that the autonomous meaning of the words “a miscarriage of justice” extends only to “clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”

The legal questions for the UK Supreme Court in Adams are: did either Lord Bingham or Lord Steyn get it right on the question of compensation for punishment following a “miscarriage of justice?; or did they both get it wrong, and compensation should not be dependent on any judgments as to an individual’s “moral” or “actual” innocence of the offence for which he or she was convicted and punished ?