TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Capo and Belgium, Puig Penella and Spain both concerned administrative decisions following some form of court review.
AP1 (Applicant): I also accept of course that the administrative decision will be confidential.
AP1 (Applicant): However as the facts of this case demonstrate, subsequent administrative proceedings in the administrative courts, sorry subsequent judicial proceedings in the administrative courts are not confidential.
AP1 (Applicant): After those proceedings it will be well known that the applicant has been refused compensation because it has been concluded that the jury may have convicted her.
AP1 (Applicant): All of this demonstrates that there is a sufficiently close relationship between the compensation decision and the criminal proceedings for Article 6.2 to apply.
AP1 (Applicant): So if I'm correct that Article 6.2 applies, one then needs to consider the reasons why
AP1 (Applicant): compensation was refused and whether those reasons are inconsistent with Article 6.2.
AP1 (Applicant): In relation to that issue, the start of the memorial of the United Kingdom government is carefully worded and that wording throws light on this issue.
AP1 (Applicant): In particular it said at the start of the memorial that the decision on compensation does not call into question the correctness of the finding that the conviction is unsafe and the consequence fact that the individual bears no criminal liability.
AP1 (Applicant): What is not said at that stage is that the decision on compensation does not question innocence.
AP1 (Applicant): The significance of that narrow wording is clear when one looks at the United Kingdom government's reasons for refusing compensation.
AP1 (Applicant): Those reasons are set out in paragraph 10 of the memorial and were repeated this morning.
AP1 (Applicant): They are essentially that had there been a retrial, the trial judge would not necessarily have directed the acquittal at the conclusion of the prosecution case and that's because there was still powerful evidence that could have been deployed by the prosecution against the applicant.
AP1 (Applicant): In other words, the United Kingdom government is saying that compensation was refused because the applicant might have been convicted had evidence been deployed at a retrial.
AP1 (Applicant): Put more bluntly, the United Kingdom government is saying that the applicant might not be innocent.
AP1 (Applicant): Difficult to see how that position is consistent with the presumption of innocence.
AP1 (Applicant): The United Kingdom government is also effectively saying that there are two categories of acquittal in the United Kingdom.
AP1 (Applicant): One is where it can be established that the jury would not have convicted.
AP1 (Applicant): That's effectively a higher quality acquittal because it's one where compensation may be payable.
AP1 (Applicant): The second category of acquittal is where the position of the government is that a person might have been convicted had their evidence been presented to the jury.
AP1 (Applicant): That's a lower category of acquittal because compensation isn't payable.
AP1 (Applicant): Clearly the United Kingdom government argues that the applicant falls into the second category.
AP1 (Applicant): That demonstrates that the United Kingdom government is simply wrong when it says its decision does not involve it expressing any views regarding the applicant's innocence.
AP1 (Applicant): The approach of the United Kingdom government means it's necessary to consider whether the presumption of innocence merely prevents, as the United Kingdom government appears to argue at points, the decision of a criminal court being questioned or whether, as the applicant argues, it prevents innocence being questioned.
AP1 (Applicant): The submission that the presumption of innocence prevents innocence being questioned is supported by a number of matters.
AP1 (Applicant): Firstly it's perhaps worth noting in passing that the memorial of the United Kingdom government accepts that the presumption of innocence can be violated where there's an expression of suspicion amounting to the determination of the guilt of the individual.
AP1 (Applicant): That's taken from paragraph 56 of the memorial.
AP1 (Applicant): That suggests that the presumption of innocence does not merely prevent the decision of a court being questioned.
AP1 (Applicant): In fact, the language of this court is different to that used by the United Kingdom government in its memorial.
AP1 (Applicant): In particular, this court has repeatedly said that the voicing of suspicions regarding innocence is not acceptable.
AP1 (Applicant): See for example Hamann and Norway, Sekhania versus Austria, Capo and Belgium.
AP1 (Applicant): Now it's important to note that those decisions were all compensation decisions.
AP1 (Applicant): That's important as different considerations may apply where a tort claim is brought by a person who's not the state.
AP1 (Applicant): That difference, or the possible different considerations that arise in that context, were recognised in Why and Norway.
AP1 (Applicant): The language that it's unacceptable to voice suspicions regarding innocence as opposed to it merely being unacceptable to voice suspicions regarding the acquittal is consistent with the approach to the cases.
AP1 (Applicant): Take the facts of Hamann and Norway.
AP1 (Applicant): In that case, the compensation decision was taken by the same court that had decided on acquittal, so it's unlikely that it would doubt its own decision.
AP1 (Applicant): The reasoning of the court deciding on compensation made it clear that it wasn't questioning acquittal.
AP1 (Applicant): It said the issue was whether compensation was payable, applying different rules of evidence.
AP1 (Applicant): So it's clear that the decision of the criminal court that acquitted the applicant in Hamann was not questioned.
AP1 (Applicant): Despite that, this court held that Article 6.2 was violated, and the reason for that
AP1 (Applicant): was because the approach to compensation adopted by the Norwegian court implied that there was a suspicion that the applicant was guilty despite their acquittal.
AP1 (Applicant): So it's unsurprising that the voicing of suspicions is prohibited.
AP1 (Applicant): If the authorities of a member state question innocence, that is likely to be regarded as significant by the public.
AP1 (Applicant): It undermines the innocence of the individual in the minds of the public.
AP1 (Applicant): There is one clear limitation to the principle that I've just described, that it's impermissible to raise suspicions regarding innocence.
AP1 (Applicant): That limitation is the principle that it may be permissible to raise suspicions where there is no decision on the merits.
AP1 (Applicant): That was expressly recognised to be a limitation on the principle that one cannot express doubts about innocence in the case of Sekania at paragraph 30 of this court's judgment.
AP1 (Applicant): That limitation explains in the applicant's submission the approach that this court took in cases such as A.L. and Germany, Baars v. Netherlands, and Del Latte v. Netherlands,
AP1 (Applicant): that the government relies on in its written pleadings.
AP1 (Applicant): A.L. was a case where the prosecution discontinued because compensation had been paid to the
AP1 (Applicant): Association to Aid Criminal Offenders.
AP1 (Applicant): Baars was a case where the prosecution had been dismissed because of a failure to comply with the guarantee to conduct a trial within a reasonable time period.
AP1 (Applicant): Del Latte was a case where compensation had been refused because of an assessment by the Dutch courts that the applicant was guilty of an offence that they'd never been indicted of.
AP1 (Applicant): In other words, all of those cases were ones where the court had never decided that the defendant should be acquitted of the relevant charges because there was insufficient evidence against them.
AP1 (Applicant): When considering whether the applicant is correct that A.L., Baars, and Del Latte can
AP1 (Applicant): be distinguished, it should be noted that United Kingdom government does not explain the difference in language used in cases such as Sekania, where there are references made to it being unacceptable to voice suspicions regarding innocence, and the language used in cases such as A.L.
AP1 (Applicant): Effectively, the United Kingdom is saying that the court did not mean what it said in cases such as Sekania.
AP1 (Applicant): That seems unlikely in light of the repeated adoption of the principle that voicing suspicions is unacceptable.
AP1 (Applicant): It also seems unlikely in light of the fact that in Sekania, this court expressly distinguished cases where there'd been a determination on the merits from ones where there'd not been.
AP1 (Applicant): Obviously the principle that Article 6.2 does not prevent the voicing of suspicions when
AP1 (Applicant): there's been no decision on the merits of the allegations does not apply here.
AP1 (Applicant): The decision of the Court of Appeal to quash the applicant's conviction was clearly based on an assessment of the evidence and not on a procedural matter such as the failure to comply with rules requiring a matter to be tried within a reasonable period.
AP1 (Applicant): All of this demonstrates that the voicing of suspicions about the applicant's guilt, as occurred in this case when she was refused compensation, is inconsistent with the presumption of innocence.
AP1 (Applicant): So in summary, the position of the applicant is that we submit that there clearly has been a violation of Article 6.2 on the facts.
AP1 (Applicant): That is because this court has consistently held that Article 6.2 applies to schemes to
AP1 (Applicant): compensate people after they've been acquitted.
AP1 (Applicant): There is no basis for distinguishing those judgments.
AP1 (Applicant): The fact that this scheme is intended to ensure compliance with Article 14.6 of the International
AP1 (Applicant): Covenant is no reason to distinguish those judgments.
AP1 (Applicant): And if Article 6.2 applies, it's been violated because compensation has been refused because
AP1 (Applicant): it's suggested that the applicant might have been convicted by a jury had there been a retrial.
AP1 (Applicant): That amounts to voicing of suspicions regarding her innocence.
AP1 (Applicant): Finally turning to relief, there is one brief point that I should make in this respect.
AP1 (Applicant): The United Kingdom Government does not identify any principles that are applied when awards of compensation are made under the domestic scheme.
AP1 (Applicant): That of course makes it very difficult for both this court and the applicant to assess the loss she suffers.
AP1 (Applicant): Particularly true when of course the loss of liberty suffered by the applicant had dramatic consequences for her, such as the loss of her child or the separation, permanent separation from her child.
AP1 (Applicant): That suggests that the correct approach is to require the United Kingdom Government to assess compensation under the national compensation scheme.
AP1 (Applicant): That is the only way that the applicant can be put in the position that she would have been in had there been no violation of her rights.
Dean Spielmann (JudgeP): Thank you Mr. Southey. I turn now to the judges if there are questions.
Dean Spielmann (JudgeP): Judge Sajó please.
András Sajó (Judge): My first question is to the government.
András Sajó (Judge): We've seen statistics provided in the Adams case, which indicate that in earlier days, half of the applications were considered to be discourage of justice.
András Sajó (Judge): More recently, the figures are different or show a different trend.
András Sajó (Judge): My question related to the statistics is, are there cases where compensation for miscarriage was provided?
András Sajó (Judge): So Section 133 was applied in the absence of a retrial.
András Sajó (Judge): So once again, no retrial was 133 ever applied without retrial.
András Sajó (Judge): Secondly, I would like to know a little bit more about the conditions of retrial.
András Sajó (Judge): What would trigger a retrial once the judgment is clashed?
András Sajó (Judge): And finally, a question to the counsel of the applicant.
András Sajó (Judge): Assuming for the sake of argument that Article 6.2 applies in this case,
András Sajó (Judge): in the specific circumstances of the case, Mrs. Allen,
András Sajó (Judge): what would, in your view, indicate that the judgment of Lord Justice Hughes was based on an assumption that Mrs. Allen is not innocent?
András Sajó (Judge): Is there anything on record that indicates that the judgment was based on such an assumption of lack of innocence?
Dean Spielmann (JudgeP): Thank you. Judge Kalaydjieva, please.
Zdravka Kalaydjieva (Judge): My question goes to both parties.
Zdravka Kalaydjieva (Judge): I understand that the applicant was considered deprived of liberty based on Article 5.1a within the meaning
Zdravka Kalaydjieva (Judge): of the convention until the moment when the Court of Appeal quashed this conviction.
Zdravka Kalaydjieva (Judge): What is the bearing of the quashing to the legal qualification of the deprivation of liberty sustained by the applicant?
Zdravka Kalaydjieva (Judge): Can it be considered that the period in which she was deprived of liberty falls under Article 5.1
Zdravka Kalaydjieva (Judge): and which of the exclusions would be applicable to her circumstances after the quashing?
Zdravka Kalaydjieva (Judge): for watching.
Dean Spielmann (JudgeP): Are there any other questions?
Dean Spielmann (JudgeP): That doesn't seem to be the case, so we interrupt the hearing for 20 minutes and we will resume the hearing in a quarter to 11.
Dean Spielmann (JudgeP): I call Mr. Strachan, please.
GR1 (Government): Could I deal first with the questions from the court?
GR1 (Government): And the first question from Judge Sargio related to the statistics that are indicated in the Addams decision in the Supreme Court.
GR1 (Government): And if I could just first of all observe that those statistics in part relate to a time when there was, in addition to the statutory scheme under Section 133, previously also there was an ex gratia scheme that operated in addition.
GR1 (Government): And that scheme was subsequently withdrawn.
GR1 (Government): But the question that was asked was whether compensation has been paid under Section 133 without there having been a retrial.
GR1 (Government): And the answer to that question is yes, indeed, there have been such cases.
GR1 (Government): And those are where the Secretary of State has concluded that there has been a relevant miscarriage of justice.
GR1 (Government): And examples, or two examples, of those cases are where, for example, there had been non-disclosure of relevant defense material which was examined at the court of appeal hearing, quashing the conviction.
GR1 (Government): And as a result of that non-disclosure, it was concluded a miscarriage of justice had occurred, even though a retrial was not ordered.
GR1 (Government): And another example is where statistical scientific evidence relied upon at the time of prosecution has become so discredited that it is no longer reliable at all, such that the evidence against the defendant is undermined to the extent that no prosecution could then take place.
GR1 (Government): So those are two examples of where compensation has been paid, notwithstanding that there's been no retrial.
GR1 (Government): The second question was related to the circumstances in which a retrial would be ordered by the court of appeal that quashes the conviction.
GR1 (Government): And the answer to that is that it's a power that the court of appeal criminal division has to decide whether to order a retrial if a retrial is requested by the crown.
GR1 (Government): And the court of appeal will examine whether it's in the interests of justice for a retrial to take place.
GR1 (Government): The crown may not apply or may not request a retrial, and the court may not order one if it's not in the interests of justice.
GR1 (Government): And two examples of those, one relevant to this case, but one more generally, the first example is where the sentence has already been served, and it's considered that ordering a retrial to examine the matter again would serve no useful purpose.
GR1 (Government): And the second example is where the crown, or indeed the court, considers that there is no longer any case to answer at a subsequent prosecution.
GR1 (Government): And in those circumstances, the court of appeal may itself decline to order a retrial even if it's requested.
GR1 (Government): The second question came from Judge Kalijeva, and that concerned Article V. And I just
GR1 (Government): would observe that the applicant's complaint is not brought in respect of Article V or an alleged violation of Article V. In terms of what has happened here,
GR1 (Government): the applicant's detention pursuant to her original conviction was a detention carried out lawfully under Article V1A.
GR1 (Government): Lawful detention of a person after conviction by a competent court.
GR1 (Government): And the subsequent quashing of the conviction on an appeal doesn't have any retrospective effect on the validity of that detention that previously took place.
GR1 (Government): And I would just add that the limited right to compensation in Article III of Protocol VII recognizes that point, that the fact of a conviction subsequently being quashed doesn't invalidate the previous lawfulness of the detention that occurred.
GR1 (Government): And finally, could I just, by way of very brief response to the applicant's case, just observe the following short points.
GR1 (Government): The applicant's submissions to the court today do indeed ignore or require the rewriting of the condition in Article III of Protocol VII, the condition that one has to demonstrate conclusively that there has been a miscarriage of justice.
GR1 (Government): And none of the cases relied upon by the applicant, in fact, relate to that criterion.
GR1 (Government): And the court, this court, has recognized the importance of that criterion and the relevant differences with the other compensation cases that have been before the court.
GR1 (Government): And that difference was recognized in Seconina and also Tendam, Spain.
GR1 (Government): And the only examples the applicant gave where it was said Article III of Protocol VII will continue to have effect, i.e.
GR1 (Government): where a conviction is reversed but not on a new or newly discovered fact, all of those examples ignore the additional criterion or condition, the miscarriage of justice condition, which I've identified.
GR1 (Government): And the applicant's submissions would indeed require that condition to be ignored.
GR1 (Government): Unless there's anything further I can assist the court with, those are my submissions.
Dean Spielmann (JudgeP): Thank you very much indeed, Mr. Strachan. I call Mr. Southey, please.
AP1 (Applicant): If I can also deal firstly with the submissions, sorry, with the questions, and then make some very brief observations regarding the United Kingdom government's submissions.
AP1 (Applicant): Dealing firstly with the question raised by Judge Sajo about the judgment of Lord Justice Hughes, and whether that was based on an assumption that the applicant was not innocent.
AP1 (Applicant): If I may, I would firstly suggest that the correct way of looking at the judgment of Lord Justice Hughes is to consider whether the judgment questioned the innocence of the applicant.
AP1 (Applicant): I say that in light of the submissions I made earlier this morning, that the issue, or the right, that arises under Article 6.2 is that the innocence
AP1 (Applicant): of the applicant should not be questioned by the state.
AP1 (Applicant): With that in mind, the judgment of Lord Justice Hughes, firstly at paragraph 17, noted that the decision of the Court of Appeal effectively involved it deciding that there was evidence that might have resulted in the applicant's acquittal, implying that it may not have.
AP1 (Applicant): Then perhaps more directly, at paragraph 28, Lord Justice Hughes indicated that he had no doubt that the decision of the Court of Appeal did not begin to carry the application that there was no case for the appellant to answer once fresh evidence was available.
AP1 (Applicant): He repeated those remarks essentially at paragraph 29, where he said that in the present case, there was no basis for saying that on the new evidence there was no case to go for the jury.
AP1 (Applicant): And in light of that, effectively at paragraph 30, concluded that there was no entitlement to compensation.
AP1 (Applicant): And those remarks in my submission need to be viewed in light of the general position as to why compensation is not payable in the United Kingdom, and the conclusion of the Court of Appeal that the applicant wasn't entitled to compensation.
AP1 (Applicant): And when those remarks are viewed in light of the general position that compensation is only payable if an individual can demonstrate that a jury would have been bound to acquit them following a retrial, it becomes clear in my submission that the decision of the Court of Appeal to refuse the claimant's claim for judicial review and hold that it was lawful to deny her compensation implies that it was accepted.
AP1 (Applicant): And the language I've just highlighted demonstrates that this is the case.
AP1 (Applicant): It becomes clear that it was accepted that the applicant could potentially have been convicted following a retrial.
AP1 (Applicant): That, in my submission, amounts to questioning her innocence.
AP1 (Applicant): Dealing with the second question, which is the question of Judge Kalajeva, which was the relevance of Article 5, it is correct that it's never been claimed by the applicant that Article 5 has been violated.
AP1 (Applicant): And you'll probably be pleased to know that this morning, I don't propose to suddenly add a further ground of claim.
AP1 (Applicant): The reason why it's never been suggested is that, as suggested by the United Kingdom government, the case law of this court doesn't indicate that Article 5 is violated where an individual is detained following a conviction that is then set aside on an appeal.
AP1 (Applicant): The only exception to that may be relatively extreme circumstances that certainly don't arise in this case.
AP1 (Applicant): However, I would say that it is relevant to consider Article 5 when looking at this claim.
AP1 (Applicant): And the reason I say that is that Article 5 demonstrates the importance attached to liberty in the Convention.
AP1 (Applicant): Article 5, of course, is the only article that includes an express right to compensation.
AP1 (Applicant): And that suggests that any exceptions to the application of Article 6.2
AP1 (Applicant): to schemes that are intended to compensate individuals for their loss of liberty caused by a criminal prosecution should be interpreted narrowly.
AP1 (Applicant): Returning then to the submissions of the United Kingdom government, there are four points that I'd just like to address briefly.
AP1 (Applicant): Firstly, it's been repeatedly suggested that my submissions mean that the requirement for it to be conclusively demonstrated there is a miscarriage of justice in Article 14.6
AP1 (Applicant): becomes meaningless.
AP1 (Applicant): However, in my submission, one needs to look at Article 14.6
AP1 (Applicant): as a whole.
AP1 (Applicant): The requirement for it to be conclusively demonstrated that there is a miscarriage of justice is linked in Article 14.6 as a whole
AP1 (Applicant): to the requirement for fresh evidence.
AP1 (Applicant): When the article is taken as a whole, in my submission, what it demonstrates is it must be the fresh evidence, and only the fresh evidence, that results in the acquittal.
AP1 (Applicant): For example, if judicial error is an aspect in any way of the reasons why an individual is acquitted, there is no compensation.
AP1 (Applicant): What the United Kingdom government fails to engage with in its submissions is the meaning of the phrase miscarriage of justice.