On 11 June 2024, the Grand Chamber of the European Court docket of Human Rights handed down its judgment in Nealon and Hallam v United Kingdom. The case is necessary for 2 causes: firstly, as a result of it supplies a long-awaited clarification of the legislation referring to the presumption of innocence below Article 6 of the Conference; secondly, as a result of it permits Strasbourg to carry out a “return shot” after UK courts have been very hostile to its earlier judgments on this subject.
The problems: miscarriages of justice and the presumption of innocence
Hallam and Nealon have been every convicted of very severe offences (homicide and tried rape respectively), and subsequently had their convictions quashed by the Court docket of Attraction on the idea that their convictions have been unsafe, and their conviction and imprisonment had been a miscarriage of justice. Each utilized for compensation. Below the related statutory scheme, ruled by the Prison Justice Act 1988, compensation is granted to some, however not all, of those that are acquitted of offences on this approach. Very broadly, with a purpose to qualify for compensation, it isn’t sufficient to indicate {that a} conviction was unsafe; the innocence of the accused should be obvious past all affordable doubt. There may be subsequently a class of people who find themselves not entitled to compensation below the Act regardless of struggling a recognised miscarriage of justice and wrongfully spending time in jail (Nealon, for instance, spent 17 years in jail earlier than his conviction was quashed). Each Nealon and Hallam claimed that this regime undermined the presumption of innocence, and breached their proper to a good trial below Article 6 ECHR.
In 2019, the Supreme Court docket dismissed their case. The claimants made an utility to Strasbourg, and their case was allotted to the Grand Chamber. 5 years later, the Court docket has issued its judgment. Each courts needed to decide two fundamental questions. The primary is straightforward: is Article 6 engaged within the circumstances? A majority of the seven judges within the Supreme Court docket appeared to suppose not. While Girl Hale, Lord Reed and Lord Kerr voted in favour of discovering that Article 6 was engaged, Lords Mance, Hughes, Lloyd-Jones and Wilson didn’t (though Lord Wilson famous that, in his view, Strasbourg would have discovered the best to be engaged, he however insisted on adopting the opposite place). The Strasbourg Court docket didn’t agree. In 2013, it had determined the case of Allen v United Kingdom, discovering that Article 6 was engaged in instances referring to compensation for miscarriages of justice. In Nealon and Hallam, it declined to depart ([129]) from its earlier judgment (though the truth that the Court docket actively acknowledged the potential of doing so is itself noteworthy, given how uncommon that is) and unanimously discovered, with little or no problem, that Article 6 was engaged on the information ([130]). The state was set for the UK courts to obtain a Strasbourg smack-down.
The second query, and the far more tough one, is that this: is Article 6 breached by the home compensation guidelines? Right here, too, a majority (5-2) of the UK Supreme Court docket stated no, though a number of the judges once more anticipated that Strasbourg would, sooner or later, disagree. This was the problem which break up the Grand Chamber, with a majority (13-5) agreeing with the Supreme Court docket to find that the laws didn’t breach the presumption of innocence in observe ([182]-[183]). Clearly, the Supreme Court docket’s scepticism was vindicated on this event. However the route which the Strasbourg Court docket adopted to reach at that place just isn’t altogether passable.
Continuity, change and revisiting the case legislation
One of many fundamental criticisms within the Supreme Court docket’s judgment, notably within the contributions of Lords Mance and Wilson, was that the Strasbourg case legislation on compensation for miscarriages of justice is tough to comply with. That, frankly, is an understatement. It’s lucky, subsequently, that Strasbourg used this chance to “revisit” its case legislation on acquittal within the civil context ([156]).
The courtroom famous that in some earlier instances there had been a division between instances involving the discontinuance of legal proceedings on the one hand, and acquittal following legal convictions on the opposite, with the latter attracting a better degree of safety below the Conference (suggesting that it’s more durable to justify the refusal of compensation for acquittal instances below Article 6). Not less than within the summary, this makes good sense – an acquittal actually appears to connote one thing stronger in regards to the innocence of the affected social gathering than discontinuance of proceedings may. However the distinction is usually laborious to make out in observe, particularly within the context of civil compensation for legal wrongs. Having accepted that the excellence had been utilized, “for essentially the most half”, in its case legislation ([151]-[156]), the Court docket confirmed that it was “now not crucial or fascinating to keep up that distinction” ([167]) and it was now not “satisfied {that a} larger degree of safety… must be maintained” ([164]) for acquittals as in comparison with discontinuances within the civil compensation context.
However what’s the impact of this revisiting? Having confirmed that it might not depart from Allen with regard to the applicability of Article 6, the Court docket got here very near doing precisely that, with out acknowledging it, on the compatibility query. The Grand Chamber famous that the Court docket in Allen apparently “didn’t deem it applicable to uphold the clear distinction between discontinuance and acquittal” ([160]). This feels considerably revisionist: Allen is, admittedly, a difficult case, and it isn’t clear precisely what the Court docket determined there; strands of case legislation have been acknowledged and quoted, however not essentially authorised or utilized. However, the Court docket in Allen did notice, with out categorical disapproval, the then-standard division between acquittal and discontinuance. The straightforward cause as to why the Court docket didn’t expressly and positively approve of the excellence was doubtless as a result of, at that time, it was thought-about to be settled legislation. In any case, the Court docket in Nealon and Hallam was in a position to get round Allen with no need to depart from it, as a result of in Allen the courtroom was solely being requested to rule on the reasoning of home courts in instances arising below the Prison Justice Act 1988, moderately than the compatibility of the statute itself. That could be a very skinny approach of distinguishing instances, however not one which is altogether unfamiliar to the Strasbourg Court docket.
What ought to we make of this end result? The division between acquittal and discontinuance was all the time considerably unconvincing, however its abandonment within the civil context might properly create much more uncertainty. The Court docket’s frank acknowledgment that it had been invited to depart from its earlier judgment, and its insistence on declining to take action with regard to the primary query referring to applicability, is a welcome step in direction of transparency (see right here), however it’s unclear how far its “revisiting” of the second query truly quantities to a de facto departure in and of itself.
Nationwide discontent
To grasp why the choice may also be necessary for nationwide courts extra usually, a quick detour into the mechanics of the Human Rights Act is required. It’s well-established in UK legislation that home courts should consider Strasbourg case legislation (part 2 HRA) however that finally they will refuse to comply with a judgment of the Strasbourg Court docket in sure outlined circumstances. These embrace, for instance, the place the case legislation just isn’t clear and fixed, or the place the Strasbourg Court docket might have misunderstood some technical or uncommon facet of home legislation (see eg Horncastle and Pinnock). Nonetheless, as I’ve argued elsewhere, when contemplating Hallam and Nealon’s utility for judicial overview, quite a lot of Supreme Court docket judges went additional than this. They refused to comply with Strasbourg’s case legislation, together with a judgment of the Grand Chamber, as a result of they thought it was wrongly determined: Strasbourg’s reasoning was defective, its adoption in home legislation could be chaotic, and the scope of Article 6 had merely ballooned too far. I’ve argued that this strategy, replicated in another instances, discloses a “fashionable mirror precept” which empowers home courts to depart from Strasbourg case legislation in a myriad of various circumstances (see right here, right here and additional [2021] Public Regulation 523 and (2022) 2 EHRLR 163). Now, Strasbourg has responded, and it appears intent on cooling the friction with home courts moderately than including warmth to it.
While a number of the Supreme Court docket’s criticisms are famous by the Court docket, and a few of Lord Wilson’s extra inflammatory passages are given particular consideration, the Court docket doesn’t truly acknowledge that quite a lot of judges selected to depart from a transparent and fixed line of Strasbourg case legislation. When it “revisited” its case legislation on the compatibility query, it didn’t level out that it was, actually, reconsidering core features of the case legislation which the home authorities have been so vital of. And, finally, Strasbourg agreed with the home judges: the home regime is appropriate with the Conference. There may be to be no extra ping-pong on this subject between the courts: previous to 2008, Strasbourg insisted on a breach. In 2010, the Supreme Court docket insisted on compatibility. In 2013, Strasbourg insisted on a breach. In 2019, the Supreme Court docket insisted on compatibility. In 2024, Strasbourg relented: it accepted the Supreme Court docket’s place that there was no incompatibility.
May the Court docket have finished in any other case? Hallam was a seven-member panel of the Supreme Court docket, and its refusal to comply with Strasbourg was set out in clear and unambiguous phrases. When studying the speeches of no less than a number of the judges in that case, it’s straightforward to get the impression that they have been partaking in combating discuss. If the Strasbourg Court docket had dominated that the home guidelines breached the Conference, the probabilities that the home courts would carry out an about-turn could be slim. In a way, the Nealon and Hallam judgment restores inter-jurisdictional concord, though I’m certain neither Hallam nor Nealon will discover this notably comforting.
Conclusion
While the Nealon and Hallam case was not essentially the most chaotic, nor essentially the most high-profile disagreement happening between the UK and European courts, it stays necessary, and illustrative: as a result of the dispute is technical and authorized, it supplies an instructive instance of how constitutional friction is perhaps resolved absent the standard tabloid headlines and political posturing. On this case, the Strasbourg Court docket capitulated. Whether or not it was proper to change its earlier jurisprudence is debatable, however the outcome will doubtless embolden the Supreme Court docket and different home courts to depart from Strasbourg authorities they suppose are wrongly determined below the “fashionable mirror precept”. If Nealon and Hallam is something to go by, they might be proper to take action.
Lewis Graham, Regulation Society Fellow in Regulation, Wadham School, College of Oxford
(Prompt quotation: L. Graham, ‘A Constitutional Conflict Averted: Nealon and Hallam v United Kingdom and the Presumption of Innocence’, U.Ok. Const. L. Weblog (thirteenth June 2024) (obtainable at https://ukconstitutionallaw.org/)
