On 11 June 2024, the Grand Chamber of the European Court of Human Rights handed down its judgment in Nealon and Hallam v United Kingdom. The case is important for two reasons: firstly, because it provides a long-awaited clarification of the law relating to the presumption of innocence under Article 6 of the Convention; secondly, because it allows Strasbourg to perform a “return shot” after UK courts were very hostile to its earlier judgments on this issue.
The issues: miscarriages of justice and the presumption of innocence
Hallam and Nealon were each convicted of very serious offences (murder and attempted rape respectively), and subsequently had their convictions quashed by the Court of Appeal on the basis that their convictions were unsafe, and their conviction and imprisonment had been a miscarriage of justice. Both applied for compensation. Under the relevant statutory scheme, governed by the Criminal Justice Act 1988, compensation is granted to some, but not all, of those who are acquitted of offences in this way. Very broadly, in order to qualify for compensation, it is not enough to show that a conviction was unsafe; the innocence of the accused must be apparent beyond all reasonable doubt. There is therefore a category of people who are not entitled to compensation under the Act despite suffering a recognised miscarriage of justice and wrongfully spending time in prison (Nealon, for example, spent 17 years in prison before his conviction was quashed). Both Nealon and Hallam claimed that this regime undermined the presumption of innocence, and breached their right to a fair trial under Article 6 ECHR.
In 2019, the Supreme Court dismissed their case. The claimants made an application to Strasbourg, and their case was allocated to the Grand Chamber. Five years later, the Court has issued its judgment. Both courts had to determine two main questions. The first is simple: is Article 6 engaged in the circumstances? A majority of the seven judges in the Supreme Court appeared to think not. Whilst Lady Hale, Lord Reed and Lord Kerr voted in favour of finding that Article 6 was engaged, Lords Mance, Hughes, Lloyd-Jones and Wilson did not (although Lord Wilson noted that, in his view, Strasbourg would have found the right to be engaged, he nevertheless insisted on adopting the contrary position). The Strasbourg Court did not agree. In 2013, it had decided the case of Allen v United Kingdom, finding that Article 6 was engaged in cases relating to compensation for miscarriages of justice. In Nealon and Hallam, it declined to depart ([129]) from its earlier judgment (although the fact that the Court actively acknowledged the possibility of doing so is itself noteworthy, given how rare this is) and unanimously found, with very little difficulty, that Article 6 was engaged on the facts ([130]). The state was set for the UK courts to receive a Strasbourg smack-down.
The second question, and the much more difficult one, is this: is Article 6 breached by the domestic compensation rules? Here, too, a majority (5-2) of the UK Supreme Court said no, although some of the judges again anticipated that Strasbourg would, in due course, disagree. This was the issue which split the Grand Chamber, with a majority (13-5) agreeing with the Supreme Court in finding that the legislation did not breach the presumption of innocence in practice ([182]-[183]). Clearly, the Supreme Court’s scepticism was vindicated on this occasion. But the route which the Strasbourg Court adopted to arrive at that position is not altogether satisfactory.
Continuity, change and revisiting the case law
One of the main criticisms in the Supreme Court’s judgment, particularly in the contributions of Lords Mance and Wilson, was that the Strasbourg case law on compensation for miscarriages of justice is hard to follow. That, frankly, is an understatement. It is fortunate, therefore, that Strasbourg used this opportunity to “revisit” its case law on acquittal in the civil context ([156]).
The court noted that in some earlier cases there had been a division between cases involving the discontinuance of criminal proceedings on the one hand, and acquittal following criminal convictions on the other, with the latter attracting a higher level of protection under the Convention (suggesting that it is harder to justify the refusal of compensation for acquittal cases under Article 6). At least in the abstract, this makes good sense – an acquittal certainly seems to connote something stronger about the innocence of the affected party than discontinuance of proceedings might. But the distinction is often hard to make out in practice, especially in the context of civil compensation for criminal wrongs. Having accepted that the distinction had been applied, “for the most part”, in its case law ([151]-[156]), the Court confirmed that it was “no longer necessary or desirable to maintain that distinction” ([167]) and it was no longer “convinced that a higher level of protection… ought to be maintained” ([164]) for acquittals as compared to discontinuances in the civil compensation context.
But what is the effect of this revisiting? Having confirmed that it would not depart from Allen with regard to the applicability of Article 6, the Court came very close to doing exactly that, without acknowledging it, on the compatibility question. The Grand Chamber noted that the Court in Allen apparently “did not deem it appropriate to uphold the clear distinction between discontinuance and acquittal” ([160]). This feels somewhat revisionist: Allen is, admittedly, a tricky case, and it is not clear exactly what the Court decided there; strands of case law were acknowledged and quoted, but not necessarily approved or applied. Nevertheless, the Court in Allen did note, without express disapproval, the then-standard division between acquittal and discontinuance. The simple reason as to why the Court did not expressly and positively approve of the distinction was likely because, at that point, it was considered to be settled law. In any case, the Court in Nealon and Hallam was able to get around Allen without needing to depart from it, because in Allen the court was only being asked to rule on the reasoning of domestic courts in cases arising under the Criminal Justice Act 1988, rather than the compatibility of the statute itself. That is a very thin way of distinguishing cases, but not one which is altogether unfamiliar to the Strasbourg Court.
What should we make of this outcome? The division between acquittal and discontinuance was always somewhat unconvincing, but its abandonment in the civil context may well create even more uncertainty. The Court’s frank acknowledgment that it had been invited to depart from its earlier judgment, and its insistence on declining to do so with regard to the first question relating to applicability, is a welcome step towards transparency (see here), but it is unclear how far its “revisiting” of the second question actually amounts to a de facto departure in and of itself.
National discontent
To understand why the decision might also be important for national courts more generally, a brief detour into the mechanics of the Human Rights Act is needed. It is well-established in UK law that domestic courts must take into account Strasbourg case law (section 2 HRA) but that ultimately they can refuse to follow a judgment of the Strasbourg Court in certain defined circumstances. These include, for example, where the case law is not clear and constant, or where the Strasbourg Court may have misunderstood some technical or unusual aspect of domestic law (see eg Horncastle and Pinnock). However, as I have argued elsewhere, when considering Hallam and Nealon’s application for judicial review, a number of Supreme Court judges went further than this. They refused to follow Strasbourg’s case law, including a judgment of the Grand Chamber, because they thought it was wrongly decided: Strasbourg’s reasoning was faulty, its adoption in domestic law would be chaotic, and the scope of Article 6 had simply ballooned too far. I have argued that this approach, replicated in some other cases, discloses a “modern mirror principle” which empowers domestic courts to depart from Strasbourg case law in a myriad of different circumstances (see here, here and further [2021] Public Law 523 and (2022) 2 EHRLR 163). Now, Strasbourg has responded, and it seems intent on cooling the friction with domestic courts rather than adding heat to it.
Whilst some of the Supreme Court’s criticisms are noted by the Court, and some of Lord Wilson’s more inflammatory passages are given special attention, the Court does not actually acknowledge that a number of judges chose to depart from a clear and constant line of Strasbourg case law. When it “revisited” its case law on the compatibility question, it did not point out that it was, in fact, reconsidering core aspects of the case law which the domestic authorities were so critical of. And, ultimately, Strasbourg agreed with the domestic judges: the domestic regime is compatible with the Convention. There is to be no more ping-pong on this issue between the courts: prior to 2008, Strasbourg insisted on a breach. In 2010, the Supreme Court insisted on compatibility. In 2013, Strasbourg insisted on a breach. In 2019, the Supreme Court insisted on compatibility. In 2024, Strasbourg relented: it accepted the Supreme Court’s position that there was no incompatibility.
Could the Court have done otherwise? Hallam was a seven-member panel of the Supreme Court, and its refusal to follow Strasbourg was set out in clear and unambiguous terms. When reading the speeches of at least some of the judges in that case, it is easy to get the impression that they were engaging in fighting talk. If the Strasbourg Court had ruled that the domestic rules breached the Convention, the chances that the domestic courts would perform an about-turn would be slim. In a sense, the Nealon and Hallam judgment restores inter-jurisdictional harmony, although I am sure neither Hallam nor Nealon will find this particularly comforting.
Conclusion
Whilst the Nealon and Hallam case was not the most chaotic, nor the most high-profile disagreement taking place between the UK and European courts, it remains important, and illustrative: because the dispute is technical and legal, it provides an instructive example of how constitutional friction might be resolved absent the usual tabloid headlines and political posturing. In this case, the Strasbourg Court capitulated. Whether it was right to modify its earlier jurisprudence is debatable, but the result will likely embolden the Supreme Court and other domestic courts to depart from Strasbourg authorities they think are wrongly decided under the “modern mirror principle”. If Nealon and Hallam is anything to go by, they may well be right to do so.
Lewis Graham, Law Society Fellow in Law, Wadham College, University of Oxford
(Suggested citation: L. Graham, ‘A Constitutional Clash Averted: Nealon and Hallam v United Kingdom and the Presumption of Innocence’, U.K. Const. L. Blog (13th June 2024) (available at https://ukconstitutionallaw.org/)