Most victims of miscarriages of justice will still be denied compensation in Britain after the European court of human rights ruled the government’s test for payouts was lawful.
A test case was brought by Sam Hallam and Victor Nealon, two men who between them served 24 years in prison for crimes they were later exonerated of. Neither was paid any compensation by the government despite new evidence being enough to overturn their convictions.
Since the law was changed a decade ago, payouts are only given to those who can prove innocence “beyond reasonable doubt”. Lawyers for Hallam and Nealon had argued it was often impossible to do so and contradicted the principle of “innocent until proven guilty”.
But a panel of judges in Strasbourg ruled by a majority of 12 votes to five that the test for denying compensation was not an unlawful challenge to the presumption of innocence.
The judges argued it was also necessary to “protect formerly accused persons who have been acquitted, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty”.
The dissenting judges drew attention to the fact that most European states provide for compensation after a miscarriage of justice. By contrast the test in the UK was “virtually insurmountable” with more than 93% of applicants to the scheme being denied compensation. The court also noted the “highly undesirable attitude towards the presumption of innocence”.
The case was heard in Strasbourg last July after the men lost in the UK supreme court in 2019. It was being watched closely to see what power Europe has over the UK’s legal decisions.
Now the only hope for Hallam, Nealon and hundreds of others who have gone uncompensated will be fresh legislation from the next government. Nealon’s lawyer, Mark Newby, said: “We call upon the new government to review the plight of our client together with the many other men and women who have suffered a miscarriage of justice ensuring they are given proper support applying a revised test that delivers fairness. After 17 years in prison simply giving someone a £46 travel warrant and dumping them at the train station cannot be right.”
Nealon spent 17 years in prison for attempted rape. The former postman served 10 years over his term because he maintained his innocence and his conviction was overturned after DNA evidence pointed to another attacker.
Nealon’s case echoes that of Andrew Malkinson, who spent 17 years in prison for a rape he did not commit. Malkinson is now surviving on benefits but unlike Nealon, DNA identified a new suspect and he has had assurances that compensation will be paid once he is ready to submit his case.
Nealon’s mental health has been shattered after nearly three decades of fighting the justice system and he now lives abroad. He told the Guardian: “Before I went into prison my mental health was stable, I didn’t have any real problems with alcohol or drugs or anything like that. I had a relationship and it was going well at the time. I lost my mother and father while I was in prison. I couldn’t even say goodbye to them. In the blink of an eye, it was all taken away from me. ”
Hallam was 17 when he was jailed in 2005 for murder on the basis of flawed identification evidence placing him at the scene of the crime. His conviction was quashed in 2012 after his unexamined phone revealed crucial evidence of his whereabouts and 14 witnesses said he was not present.
Since his release from jail, Hallam has received no compensation despite the Crown Prosecution Service dropping its opposition to the appeal and the Metropolitan police apologising to him. He has suffered debilitating post-traumatic stress disorder and depression, which has stopped him working. In an interview with the Guardian last year, he said: “I’ve got really low. I have never tried to take my life but I’ve had suicidal thoughts.” He said that the refusal to pay compensation left him feeling that the government did not believe he was innocent.
In response to the Strasbourg judgment, Hallam said: “For 20 years, the whole of my young adult life, I have been fighting a murder case of which I am entirely innocent. Still today I have not received a single penny for the seven and half years I spent in prison. The brutal test for compensation introduced in 2014 needs to be abolished, it goes completely against what this country should stand for.”
Nealon said: “For 17 years I fought a case of which I am entirely innocent. Over 10 years later I have not received any compensation from the government for the life I lost, nor the mental agony inflicted on me. This is not justice, and I am appalled by the decision of the court today.”
Hallam’s lawyer, Marcia Willis Stewart KC, said: “It cannot be right that in a just society there is no redress for years spent in custody. We will continue to bring pressure to bear on the government to amend the compensation scheme to enable Sam and others to obtain financial redress.”
