Salami slicing justice

Recently, the brilliantly entertaining satirical musical The Scottsboro Boys has taken the west end
by storm. A moving tale of
a deplorable miscarriage of justice, which brought about
the end of all-white juries in Alabama, the musical tells the tale of the Scottsboro boys,
nine black teenagers who were falsely convicted of raping two white girls in 1931.

The play serves as a reminder of the fallibility of the court process. Although we would like to put such atrocious injustices behind us, the Criminal Cases Review Commission, set up following the release of the Birmingham Six, has quashed of hundreds of unsafe convictions. Recently, Victor Nealon and Sam Hallam spent 24 years combined in jail for murder and attempted rape: crimes they did not commit. These harrowing years have caused them post-traumatic stress disorder, unemployment, and poverty.

Until last year, a miscarriage of justice was said to have occurred, and compensation was paid, when a new fact ‘so undermines the evidence against the defendant that no conviction could possibly be based upon it.’ This is a fairly high threshold: when no jury would ever consider the defendant guilty.

Theresa May, however, in a desperate attempt to compete with Chris Grayling’s astonishing endeavours to make money
by salami slicing justice, has changed the law to remove the presumption of innocence from those who have been wrongly convicted. A ‘miscarriage of justice’ is now defined as ‘a case where the newly discovered
fact shows beyond reasonable doubt that the applicant was innocent’.

These proposals put an extremely onerous evidential burden on the individual. They have to prove that they did not commit the requisite acts with the requisite state of mind that would make them guilty of the offence. Lord Hope envisaged ‘situations where sheer proof
of innocence…will be simply unattainable’, especially with historical prosecutions.

Nealon and Hallam have been denied compensation for losing 24 years of life. This is being challenged. Article 6 (2) of the European Convention on Human Rights provides that ‘everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law’. Strasbourg has made it clear that this would be breached if an applicant was required to prove their innocence, which is precisely what this new test is asking Nealon and Hallam to do.

The same ideology which is driving the government’s discriminatory immigration policy and legal aid cuts – which have directly resulted in the closure of the chambers of Michael Mansfield QC, who represented the Birmingham
Six and Guildford Four (who would be unlikely to satisfy this new ‘innocence test’) – also drove this removal of the presumption of innocence for those who have been wrongly convicted. The test restricts access to compensation for those who have endured trauma, stigma, and deprivation as the result of years of wrongful imprisonment. My prediction is that Grayling will soon have another successful challenge
to his decisions to add to his collection. No wonder he’s trying so hard to get rid of judicial review. SJ

Rebekah Read is a solicitor at Leigh Day

@LeighDay_Law