FACTUAL AND LEGAL INNOCENCE

Since a change in the law in 1995 the Court of Appeal has been required to quash a conviction if it concluded that it was ‘unsafe’ (it had been ‘unsafe or unsatisfactory’), and in any other case to dis­miss the appeal.

The phrase is adopted historically from the English common law and today finds its declaration in Article 6 of the European Convention on Human Rights and Fundamental Freedoms, and all other international declarations of civil liberties. This states cate­gorically that ‘everyone is innocent until proved guilty’: all too readily it comes tripping off the tongue. In practice it functions only evidentially. Only as and when you are charged with a criminal offence - and not before the criminal process begins to run - does it come into play. Then and only then, legal innocence is appropri­ately assigned to the criminal defendant. There is nothing to indi­cate factual innocence or non-involvement in crime. To underline the point, it is necessary to quote the opinion of our leading jurists. Most concisely and with utter clarity, the late Lord Rodger of Earlsferry said in a Scottish judgment in February 2010:⁹

It is, of course, trite that an individual charged with a crime is presumed to be innocent until proved guilty.

The Scots are not alone in stating the truism.

A modern description comes from Lord Justice Mantell in July 2000. Three men were freed by the Court of Appeal (Criminal Division), ruling that there had been a ‘profoundly disturbing’ con­spiracy between police officers investigating the crimes of murder and robbery to give perjured evidence at the accused’s Old Bailey trial. The Lord Justice, at the end of his judgment quashing the con­victions as unsafe verdicts, said he and his colleagues were doing so ‘not as a finding of innocence; far from it.’ What he was saying clearly was that a criminal trial does not address the question of ‘factual innocence’. It is there to determine whether the Crown has proved its case beyond a reasonable doubt. If so, the accused is found guilty - if not, the accused is found not guilty; the court makes no finding of factual innocence, since it would not fall within the ambit of purpose of the criminal law. More recently (in 2011) the judiciary similarly endorsed these sentiments. In an appeal to

⁹ Allison vHM Advocate [2010] UKSC 6 [9]. the UK Supreme Court in R (on the application of Adams) v The Secretary of State for Justice¹⁰ they repeated those sentiments in a case involving the payment of compensation for miscarriages of justice to anyone who had been wrongly convicted as a result of such a miscarriage, whether acquitted thereafter or not. Lord Phillips, the Court’s President (although the dissidents disagreed as to whether the courts were entitled to express their views) added: ‘While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellant’s factual innocence.’ Lady Hale, in the same case, added that ‘innocence as such is not a concept known to our criminal justice system.

The most difficulty arises where the accused successfully appeals against his conviction. Can he or she publicly pronounce to the world at large (including, persistently, the media) that he or she is innocent, factually as well as legally? Strictly speaking, the answer is no. The factual innocence is still at large, and debatable. It was this issue that directly engaged me personally when I wrote in 1997 about the case of the Birmingham Six. Suffice it to say, the social or public question of any citizen claiming his or her innocence, what­ever the courts may have ruled, is very much up for discussion.

The presumption of innocence which arises when a person is charged with a criminal offence is a sacrosanct principle of criminal procedure, enshrined in the language of the Convention. Taken alone, however, Article 6(2) is susceptible to different conclusions. It provides simply that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. What does ‘everyone’ mean? Or does it mean everyone when charged, or likely to be charged in the future, with a criminal offence and for as long as such charges are pending? Is the presumption something that is triggered, that only becomes legally meaningful when events occur through which he is, in reality, facing or likely to face a criminal charge which has not as yet been determined? If these are more than neat philosophical questions, how they are answered is critical to any case. The free-standing, post-acquittal (thus eternally live) model of interpretation of Article 6(2) is appeal­ing and attractive; there is some arguable support for this mode, at least where a sufficient link exists between the observations of the court after they have acquitted on the ground of the conviction being unsafe, and the criminal responsibility of the accused. Even if one adopts the overall ‘fair trial’ context, it reinforces the argument that, for the rest of us (not connected even indirectly with the crim­inal proceedings), we are not envisaged as either factually or other­wise not factually innocent. The legal (and social) reality is that there is neutrality. We are neither innocent of complicity in crime, nor guilty. What then is our status?

Our model of criminal trial is unconcerned with activities beyond the criminal process. Even if one adopts a more compelling reach, which is that the criminal court is involved in the general canon of control, there are questions as to the court’s assistance to the other institutions of our society concerned with maintaining law and order.

This chapter merits a footnote. On 12 July 2013 the Grand Chamber of the European Court of Human Rights, in a decision in Allen v United Kingdom,¹¹ decided that a claim to compensation for a miscarriage of justice is not covered by Article 6. But the majority of the 16 to one voters did touch on the potential for a future juris­prudence, giving a claimant some claim. It contemplated develop­ing an ‘after-life’ to the concept of the presumption of innocence. If such a posthumous jurisprudence can exist, it has no logical place in the English system. Compensation for miscarriages of justice must be calculated on some other basis, and not following some obiter dicta of judges as a possible test for defects in the criminal justice system; a number of current applications are pending before the Strasbourg Court, so the story is far from being over. Innocence of crime may have a legal label beyond the evidential ambit. But how to define its breadth?

I ought simply to state why I favour strong support for the single concurring opinion of Judge de Gaetano (the Maltese representa­tive) in the Allen judgment. He takes his decision on the traditional (if you like, the narrow) interpretation of the presumption of inno­cence. If ‘innocence’ - a human concept, without legal content - were at stake, a different matter would arise. A presumption of something happening does not exist alone; it is not self-standing as a principle; it depends upon the existence of a substantive rule in criminal justice; to adopt the language of the law, it is strictly evidential and depends for its life on the continued existence of a criminal charge. Once the criminal proceedings are concluded, the presumption lapses; the evidence supporting it lapses as well. There is nothing formal that revives it. Innocence is not and cannot be a legal concept, unless and until Parliament decides that it does have some effect post-acquittal.