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On appeal from: [2016] EWCA Civ 355

This appeal considered whether the definition of a ‘miscarriage of justice’ in the Criminal Justice Act 1988, s 133(1ZA), which has the effect of restricting awards of compensation to cases in which a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence, is incompatible with the presumption of innocence in ECHR, art 6(2).

By a majority of five-to-two, the Supreme Court dismissed the appeals. Lord Reed and Lord Kerr dissented stating that the critical factors in the ECtHR decision of Allen should have been followed and consequently it is necessary for the Secretary of State to examine the judgment of the Court of Appeal to determine whether the criteria of s 133 were satisfied.

The majority found that although ECHR, art 6(2) had been engaged, it does not automatically follow that the ECtHR would find a violation. The Court considered the ECtHR’s jurisprudence in this area to be evolving and that it would be inappropriate to make a declaration of incompatibility in proceedings brought by an individual in respect of whom the ECtHR would be unlikely to find a violation (the facts of these cases being equivalent to those in Allen where no violation was found). The majority found the ECtHR has not yet directly addressed the issue of why it is objectionable to require evidence establishing innocence but it is not objectionable to require evidence establishing that the claimant could not reasonably have been convicted. Finally, the majority found that there is desirability of a uniform interpretation of art 6(2), and that these mattes require consideration by the ECtHR.

For judgment, please download: [2019] UKSC 2
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (8 May 2018 morning session) (8 May 2018 afternoon session) (9 May 2018 morning session) (9 May 2018 afternoon session)