CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 11 juin 2024

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font-weight:bold; font-style:italic } .fixListIndent { list-style-position: inside }   GRAND CHAMBER CASE OF NEALON AND HALLAM v. THE UNITED KINGDOM (Applications nos. 32483/19 and 35049/19)   JUDGMENT Art 6 § 2 • Presumption of innocence • Refusal of compensation for a miscarriage of justice, following quashing of applicants’ criminal convictions as “unsafe”, for failing to meet new statutory test introduced after the judgment in Allen v.   the United Kingdom [GC] • Art   6 §   2 applicable; no reason to depart from Court’s conclusion in Allen on applicability • Case-law concerning cost issues and compensation claims by a former accused following acquittal revisited • Distinction between acquittals and discontinuances in relevant Court case-law not to be maintained • Defining criterion in all cases whether impugned reasoning and decisions of domestic courts or other authorities in subsequent linked proceedings amounted to an imputation of criminal liability • No right to compensation for a miscarriage of justice under Art   6 §   2 following the quashing of a criminal conviction • Respondent state free to decide how “miscarriage of justice” should be defined and to draw legitimate policy line as to eligibility for compensation following the quashing of a conviction, so long as compensation refusal did not impute criminal guilt to an unsuccessful applicant • Refusal of compensation claims in the instant case did not impute criminal liability to applicants   Prepared by the Registry. Does not bind the Court.   STRASBOURG 11 June 2024   This judgment is final but it may be subject to editorial revision. Table of Contents PROCEDURE THE FACTS THE CIRCUMSTANCES OF THE CASE A.   Introduction B.   The legislative background 1.   The meaning of “miscarriage of justice” in domestic law 2.   The Court’s judgment in Allen 3.   The follow-up cases 4.   The subsequent legislative amendment C.   The factual background 1.   The quashing of the applicants’ convictions 2.   The applicants’ claims for compensation 3.   Proceedings before the Administrative Court 4.   Proceedings before the Court of Appeal 5.   Proceedings before the Supreme Court RELEVANT LEGAL FRAMEWORK AND PRACTICE A.   The United Kingdom 1.   Quashing a conviction 2.   Compensation for a “miscarriage of justice” (a)   Section 133 of the 1988 Act (b)   Judicial interpretation of “miscarriage of justice” (i)   R(Mullen) v. Secretary of State for the Home Department (ii)   R(Adams) v. Secretary of State for Justice (c)   The amendment to section 133 of the 1988 Act (d)   The observations of the Joint Committee on Human Rights B.   International Legal Materials 1.   International Covenant on Civil and Political Rights 1966 2.   Article 3 of Protocol No. 7 to the Convention C.   Law and Practice in the Contracting States on the award of compensation following the quashing of a criminal conviction, and the concept of “miscarriage of justice” THE LAW I.   JOINDER OF THE APPLICATIONS II.   ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION A.   Preliminary observations regarding Article 6 § 2 of the Convention B.   Admissibility 1.   The parties’ submissions (a)   The Government (b)   The applicants (c)   The third party interventions (i)   JUSTICE (ii)   The Northern Ireland Human Rights Commission (“NIHRC”) 2.   The Court’s assessment (a)   General principles (b)   Application of the general principles to the facts of the case at hand (c)   Conclusions on admissibility C.   Merits 1.   The parties’ submissions (a)   The applicants (b)   The Government (c)   The third party intervenors (i)   JUSTICE (ii)   The NIHRC 2.   The Court’s assessment (a)   The statement of general principles in Allen (b)   Application of those general principles in the cases following Allen (c)   The approach to be taken in cases concerning the second aspect of Article   6   §   2 (d)   The application of those principles to the cases at hand OPERATIVE PROVISIONS JOINT DISSENTING OPINION OF JUDGES RAVARANI, BOŠNJAK, CHANTURIA, FELICI AND YÜKSEL   In the case of Nealon and Hallam v. the United Kingdom, The European Court of Human Rights (Grand chamber), sitting as a Grand Chamber composed of:   Síofra O’Leary,   Georges Ravarani,   Marko Bošnjak,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Arnfinn Bårdsen,   Carlo Ranzoni,   Mārtiņš Mits,   Tim Eicke,   Péter Paczolay,   Lado Chanturia,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,   Saadet Yüksel,   Mykola Gnatovskyy , judges , and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 5 July 2023 and 27 March 2024, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in two applications (nos. 32483/19 and 35049/19) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Victor Nealon, and a British national, Mr Sam Hallam (“the   applicants”), on 14 June 2019 and 25 June 2019 respectively. 2.     The first applicant was represented by Mr M. Newby, a lawyer practising in Doncaster with Quality Solicitors Jordans. The second applicant, who had been granted legal aid, was represented by Ms   M.   Willis   Stewart   KC, a lawyer practising in London with Birnberg Peirce, Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Ms S. Dickson of the Foreign, Commonwealth and Development Office. 3.     The applicants alleged that the refusal of their claims for compensation for a miscarriage of justice under section 133(1ZA) of the Criminal Justice Act 1988, which followed the quashing of their criminal convictions by the Court of Appeal (Criminal Division), violated the presumption of innocence. 4.     On 14 May 2020 the Government were given notice of the applications. 5.     The President of the Fourth Section granted JUSTICE leave to make written submissions as a third party (Article 36 § 2 of the Convention and   Rule 44 § 3). 6.     On 7 February 2023 a Chamber of the Fourth Section, to which the applications had been allocated, decided to relinquish jurisdiction in favour of the Grand Chamber (Article 30 of the Convention and Rule 72). 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 8.     The applicants and the Government each filed memorials on the admissibility and merits of the case. Third‑party comments were received from JUSTICE and also from the Northern Ireland Human Rights Commission which had been granted leave by the President of the Grand Chamber to make written submissions as a third party (Article 36 § 2 of the Convention and Rule 44 § 3). The Government of Ireland did not seek to exercise their right to intervene (Article 36 § 1 of the Convention and Rule   44 of the Rules of Court). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 5 July 2023. There appeared before the Court: (a)     for the Government Ms   S. Dickson,   Agent, Mr   J. Strachan KC, Mr   M. Gullick KC,   Counsel, Mr   M. Rimer, Ms A. Samedi and Ms S. Heywood,   Advisers, (b)     for the first applicant M r   M. Stanbury ,   M r   D . Pojur,   Counsel, M r   M. Newby ,   Adviser , (c)     for the second applicant M r   A. Straw KC ,   Counsel , Ms   M. Willis Stewart KC , Mr   M. Foot , Ms   J. Kamath ,   Advisers.   The Court heard addresses by Mr Strachan KC, Mr Straw KC and Mr   Stanbury. THE FACTS THE CIRCUMSTANCES OF THE CASE 10.     The applicants were born in 1960 and 1987 respectively and are currently resident in the United Kingdom.    Introduction 11.     The present case is factually similar to that of Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013). The applicants were convicted of criminal offences; those convictions were later quashed on the ground that they were “unsafe”; the prosecution did not seek a retrial; the applicants applied for compensation for a “miscarriage of justice”; and those applications were refused as the applicants had not satisfied the test in section   133 of the Criminal Justice Act 1988 (“the 1988 Act”).    The legislative background      The meaning of “miscarriage of justice” in domestic law 12.     Section 133 of the 1988 Act provided for the payment of compensation where a person’s conviction of a criminal offence was reversed on the ground that a new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice, unless the non-disclosure of the unknown fact was wholly or partly attributable to that person (see paragraph 51 below). 13 .     Prior to 2014 the meaning of “miscarriage of justice” had not been settled by the domestic courts (see paragraphs 56-79 below). In R(Mullen) v.   Secretary of State for the Home Department ([2004] UKHL 18) (see paragraphs 56-62 below) Lord Steyn had expressed the view that “miscarriage of justice” only extended to the conviction of someone subsequently shown to be innocent. Lord Bingham of Cornhill, on the other hand, had doubted whether this was correct. Nonetheless, the House of Lords were unanimous in holding that the abuse of power that had led to the quashing of Mr Mullen’s conviction did not fall within the definition of “miscarriage of justice”, whatever the meaning of that phrase. The domestic proceedings in Allen (cited above) followed. In the Court of Appeal ( R (Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1) Lord   Justice Hughes, giving judgment for the court, understood Lord   Bingham’s approach in R(Mullen) to have included in the definition of “miscarriage of justice” situations where something had gone seriously wrong in the conduct of the trial. Although he expressed a preference for Lord   Steyn’s approach, he did not consider it necessary to resolve the differences between Lord Steyn and Lord Bingham since even if Lord   Bingham’s approach were to be applied the case could not succeed. 14 .     In R(Adams) v. Secretary of State for Justice ([2011] UKSC 18) (see paragraphs 63-79 below) the Supreme Court, sitting as a panel of nine judges, held, by a majority, that Article 6 § 2 did not apply to applications under section 133 of the 1988 Act. The majority further held that “miscarriage of justice” included cases falling within the following categories: where the fresh evidence showed clearly that the defendant was innocent of the crime of which he had been convicted; and where the fresh evidence so undermined the evidence against the defendant that no conviction could possibly be based upon it; and excluded from the common law definition the following categories: where the fresh evidence rendered the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant; and where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.      The Court’s judgment in Allen 15.     In her application before this Court in 2009 Mrs Allen did not complain that section 133 of the 1988 Act was inherently incompatible with Article 6 § 2 of the Convention. Rather, she alleged that the reasons given by the High Court and the Court of Appeal for the refusal to award her compensation following the quashing of her conviction gave rise to doubts about her innocence and therefore violated the presumption of innocence. 16.     The Grand Chamber accepted that Article 6 § 2 of the Convention was applicable to determinations of applications for compensation under section   133 of the 1988 Act but found that that Article had not been violated as the judgments of the High Court and the Court of Appeal did not demonstrate a lack of respect for the presumption of innocence. Although not called upon to consider the section 133 test in the abstract, the Court nevertheless stated that “what is important above all is that the judgments of the High Court and the Court of Appeal did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence” (see Allen , cited above, §   133).      The follow-up cases 17 .     Following the handing down of the judgment of the Grand Chamber on 12 July 2013, the Fourth Section adopted inadmissibility decisions in three follow-up cases: K.F. v. the United Kingdom ((dec.), no. 30178/09, 3   September 2013); Adams v. the United Kingdom ((dec.), no. 70601/11, 12   November 2013); and A.L.F. v. the United Kingdom ((dec.), no. 5908/12, 12 November 2013). The applicants in all three cases had had their convictions quashed on the ground that they were unsafe, and their applications for compensation under section 133 of the 1988 Act were refused by the Secretary of State for Justice (“the Justice Secretary”), who did not accept that the facts showed beyond reasonable doubt that there had been a miscarriage of justice. 18 .     In both Adams and A.L.F. v. the United Kingdom the applicants had complained before the Court that the statutory test, as interpreted by the Supreme Court in R(Adams) (see paragraph 14 above), was in and of itself incompatible with Article 6 § 2 of the Convention. The Court rejected that argument. As it explained in Adams (cited above, §40) “40.     All nine justices in the Supreme Court agreed that an acquittal in itself was not enough to demonstrate that a miscarriage of justice had occurred. In Allen , cited above, § 129 the Grand Chamber accepted that the domestic courts were entitled to conclude that more than an acquittal was required in order for a miscarriage of justice to be established, within the meaning of section 133, provided that they did not call into question the applicant’s innocence. Lord Phillips explained that the test for a miscarriage of justice would be satisfied where a new fact so undermined the evidence against the defendant that no conviction could possibly be based upon it. That test was broadly approved by the other four Justices in the majority (see paragraph 24 and 26 ‑ 29 above). The application of the test did not undermine the applicant’s acquittal or treat him in a manner inconsistent with his innocence. The test did not oblige the court to comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, it did not require the court to comment on whether the evidence was indicative of the applicant’s guilt or innocence.” 19 .     It concluded: “41.     It is true that in the course of the Supreme Court judgment there was some reference to the question of innocence. In particular, the Justices discussed whether section 133 required that a claimant conclusively prove his innocence in order to be eligible for compensation. However, it is clear that this was roundly rejected by the majority of Justices in the case in favour of the broader test formulated by Lord Phillips. It is unfortunate that some of the language used in the judgment was liable to create confusion and an undesirable impression in the mind of the applicant as to the standard required for compensation. But in light of the clear test articulated by Lord Phillips, it should be apparent to any future claimant that questions of guilt and innocence are irrelevant to proceedings brought under section 133 of the 1988 Act.” 20 .     In A.L.F. v. the United Kingdom the Court considered a reference to “innocence” in the refusal letter to have been “both unfortunate and unnecessary”. It continued: “24.     ... As the Court explained in Adams , cited above, § 41, it should be apparent from the judgment of the Supreme Court in R(Adams) that questions of guilt and innocence are irrelevant to proceedings brought under section 133 of the 1988 Act. Having regard to the foregoing, in order to avoid both any possible misconceptions in the minds of future claimants under section 133 and any suggestion of bringing into play the presumption of innocence under Article 6 § 2 of the Convention, it would be more prudent to avoid such language altogether in future decisions made under this section.” The subsequent legislative amendment 21 .     Following the Court’s judgment in Allen , section 133 of the 1988 Act was amended by the Anti-Social Behaviour, Crime and Policing Act 2014. The 2014 Act inserted a new section 133(1ZA) pursuant to which an applicant would be eligible for compensation if and only if the new or newly discovered fact showed beyond reasonable doubt that he or she did not commit the offence (see paragraph 80 below). The original wording in the Bill had required the new or newly discovered fact to show beyond reasonable doubt that the person was “innocent of the offence”. However, during the legislative process concerns were raised (by, among others, the Joint Committee on Human Rights (see paragraphs 81-82 below) about the potential breach of Article 6 § 2 of the Convention and in light of those concerns “innocent of the offence” was replaced by “did not commit the offence”. 22.     This amendment is applicable in England, Wales and – in certain limited cases, where protected information is relevant to the application – in Northern Ireland (see paragraph 147 below). In Scotland, and in Northern Ireland, when protected information is not relevant to the application, section   133 of the 1988 Act continues to apply in its unamended form (see paragraphs 143 and 147 below).    The factual background      The quashing of the applicants’ convictions 23.     The first applicant was convicted of attempted rape in 1997, primarily on the basis of identification evidence, and was sentenced to life imprisonment with a minimum term of seven years. In 2012 the Criminal Cases Review Commission referred his conviction to the Court of Appeal (Criminal Division) (“CACD”) as a further analysis of the clothes the victim was wearing on the night of the attack had revealed DNA from an unknown male. The CACD allowed his appeal and quashed his conviction. While it noted that the prosecution’s case had not been “demolished” by the fresh evidence, in the court’s view its effect on the safety of the conviction was “substantial”. 24.     In 2004 the second applicant was convicted of murder, together with conspiracy to commit grievous bodily harm and violent disorder. The case against him had depended on the visual identification evidence of two   witnesses. In 2011 his case was referred back to the CACD on the ground that new evidence had cast doubt on the identification evidence. The CACD allowed the second applicant’s appeal and quashed his convictions. It considered that the cumulative effect of the new evidence had been to undermine the safety of those convictions. Although the second applicant had argued that there was sufficient evidence to lead to the conclusion that he was innocent of the offences of which he was convicted the court was “not satisfied it would be appropriate to use that power [to state that he was innocent] on the facts of this case”. 25.     The first applicant served a total of seventeen years and three months of his sentence, while the second applicant served seven years and seven months.      The applicants’ claims for compensation 26 .     Both applicants applied for compensation for a miscarriage of justice following the quashing of their convictions. Those applications were refused because the Justice Secretary was not satisfied that their convictions had been quashed on the ground that a new or newly discovered fact showed beyond reasonable doubt that they did not commit the offences. Both decision letters concluded with a statement to the effect that nothing in them was intended to undermine, qualify or cast doubt upon the decision to quash their convictions, and that they were presumed to be and remained innocent of the charges brought against them. The letter to the first applicant’s representative further indicated that “[a]lthough the Crown Prosecution Service did not seek a retrial, the reasons for this included the circumstances of the case, the length of time of a retrial which was not in the public interest and the fact that your client had already spent 17 years in prison”.      Proceedings before the Administrative Court 27 .     The applicants sought permission to judicially review the decisions to refuse their applications for compensation, and their cases were listed together. They argued that section 133(1ZA) of the 1988 Act was incompatible with Article 6 § 2 of the Convention because it required them to prove their innocence in order to be eligible for compensation. They therefore sought a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. 28 .     The Administrative Court granted their applications for permission to apply for judicial review but dismissed their claims. It considered itself bound by the judgment in R(Adams) , in which the Supreme Court had held that Article 6 § 2 of the Convention had no bearing on a decision for compensation under section 133 of the 1988 Act (see paragraph 14 above). The court readily accepted that, following Allen (cited above), one could argue that section   133(1ZA) offended against the presumption of innocence as it required convicted persons to demonstrate their innocence. Nevertheless, even assuming that Article 6 § 2 of the Convention was applicable to decisions under section 133 of the 1988 Act, it considered that such a conclusion would be wrong, since section 133(1ZA) did not in fact require an applicant for compensation to prove his or her innocence. Rather, the Justice Secretary had to be satisfied of the link between the new fact and the applicant’s innocence before he was required to pay compensation, and not of the applicant’s innocence in a wider sense. Thus, the refusal of compensation on the basis that the statutory criteria were not established did not carry with it the implication that the person concerned was guilty.      Proceedings before the Court of Appeal 29 .     The Court of Appeal dismissed the applicants’ appeal. It considered that R(Adams) was binding precedent that Article 6 § 2 of the Convention was not applicable to the operation of section 133 of the 1988 Act, whatever definition of “miscarriage of justice” was adopted (see paragraph 14 above); and that this remained the case regardless of what the Court had subsequently said in Allen . Even if Article 6 § 2 had been applicable it would not have accepted that section 133(1ZA) was incompatible with it since it did not require the applicant to prove his innocence generally. On the contrary, the key issue for the purpose of establishing eligibility for compensation under section 133(1ZA) was the effect of the new or newly discovered fact which had led to the conviction being quashed on appeal. The fact that the Justice Secretary was not persuaded beyond reasonable doubt by a new or newly discovered fact that an applicant was innocent did not entail the Justice Secretary casting doubt on his or her innocence generally. He was merely saying that the applicant’s innocence had not been proved by the new or newly discovered fact.      Proceedings before the Supreme Court 30.     The applicants were granted permission to appeal to the Supreme Court, which on 30 January 2019 dismissed their appeal by a majority of five Justices to two ([2019] UKSC 2). 31.     The Supreme Court considered that the central issue in the appeal could be split into two broad questions: whether Article 6 § 2 of the Convention applied to all decisions on, or the criteria for, the award of compensation under section 133 of the 1988 Act; and, if and insofar as Article   6 § 2 was applicable, whether the definition of “miscarriage of justice” in section 133(1ZA) was compatible with it. 32 .     Turning to the first question, Lord Mance (with whom Lord   Lloyd ‑ Jones agreed) declined to follow the case-law of the Court, if and insofar as it went further than to preclude reasoning that suggested a defendant in criminal proceedings leading to an acquittal or discontinuance should have been convicted of the criminal offence with which he was charged. He stated: “47.     ... I can ... accept that, once criminal proceedings have concluded with acquittal, or, indeed, a discontinuance, no court should in civil or other proceedings express itself in terms which takes issue with the correctness of the criminal acquittal or discontinuance. Such an extension, achieving a degree of harmony with the approach in Strasbourg, seems at least workable and, of course, reflects what one would hope was anyway proper practice. But courts have often – in contexts not involving the pursuit of a criminal charge and using tools and language appropriate to such contexts – to engage with identical facts to those which have led to a criminal acquittal or discontinuance of criminal proceedings. In such circumstances, it is very commonly the case that the standard of proof will differ in the different contexts of criminal and other proceedings. It is, thus, entirely possible that a court may, in a context not involving the pursuit of any criminal charge, find on the balance of probabilities facts which could not be established beyond reasonable doubt in criminal proceedings. ... The real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role. 48.     If on the other hand, a court has, on the same facts as were in issue in criminal proceedings leading to an acquittal or discontinuance, determined a civil issue (or any issue other than a criminal charge) against the defendant, and has confined itself to reasoning relevant to that issue, that means, as I see it, that it has applied the law, rather than infringed article 6(2). I do not believe that either the press or the public is wholly ignorant that the criminal standard of proof may on occasions lead to acquittal or discontinuance, in circumstances where the commission of the offence could be established on the balance of probabilities. ... 49.     Unfortunately, as it seems to me, the ECtHR has in a number of judgments condemned courts determining a civil issue for accurate descriptions of the elements of an offence constituting a tort simply because such elements also featured in past criminal proceedings. To require a civil court to tergiversate, by using words designed to obscure the fact that the law may find facts proved on a balance of probabilities which were not proved to the standard necessary for criminal conviction, does not assist either the law or the public or the defendant.” 33 .     Lord Mance observed that a reading of the grounds on which the CACD allowed the applicants’ appeals indicated that in each case it did so simply because the newly discovered facts made their convictions unsafe. In other words, the CACD’s actual decision was, as in Allen , simply that their cases fell domestically within the third of the categories identified in R(Adams) (see paragraph 14 above). It was clear from Allen that there was nothing wrong with a criminal court, when setting aside a conviction, confining itself to indicating that “the new evidence, when taken with the evidence given at trial, ‘created the possibility’ that a jury ‘might properly acquit’ the defendant”; or explaining that “the evidence which was now available ‘might, if it had been heard by the jury, have led to a different result’”; or expressing itself in terms which “did ‘not begin to carry the implication’ that there was no case for the applicant to answer”; or indicating that “there was ‘no basis for saying’ on the new evidence that there was no case to go to a jury”. In his view, “68.     All these are ways of expressing a conclusion that a case falls within category   (3). They amount to saying that some ground for suspicion remains. Yet it is clear from Allen that they are acceptable and that Sekanina does not have contrary effect. A central plank of the ECtHR’s judgment in Allen is that there is nothing wrong with a refusal of compensation on the ground that the case falls within category (3). That is, as I read both the CACD’s judgments, also the ground on which the CACD allowed both the present appellants’ appeals in the criminal proceedings, as well as the ground on which the Secretary of State disallowed their claims for compensation. 69.     It follows, as the other side of the coin from what I have already said, that the right to compensation can legitimately be expressed to depend upon whether (adopting the terminology in Adams ) the conviction was set aside on a ground falling within category   (1) or (2). Logically, a defendant wishing not merely to have a conviction set aside, but also wishing to recover compensation, must, unless the case is one of the rare cases (see paras 32 to 34 above) in which the CACD expresses its judgment setting aside the conviction in terms going further than a conclusion that the conviction is unsafe, persuade the Secretary of State to go further. In the rare case where the CACD does express itself in terms stating that the defendant is innocent, that will in practice be conclusive. The Secretary of State could not realistically go behind such a statement. But in other cases, where the CACD has merely determined that the conviction is unsafe, it must be open to the state to resist a defendant’s suggestion that the case falls within a different category that would entitle him to compensation, and for the Secretary of State to reach a conclusion on that basis. Otherwise, as soon as a defendant argues that the Secretary of State should go further than the CACD has gone and should view the circumstances as falling within a category for which the legislature has prescribed compensation, the state would have to accept this, and concede liability to pay compensation. This situation did not of course arise in Allen , because there was no attempt there by Ms Allen to bring her circumstances into any category other than that of category (3) within which the CACD had seen it as falling. 70.     A defendant seeking compensation after the setting aside of his or her conviction by the CACD may therefore be required to show that the circumstances were not merely such that his conviction was unsafe. Using the terminology in Adams , the circumstances must be shown to fall within a higher category, which must, necessarily (and using the terminology in Adams ), be either category (1) or category (2), or, since the enactment of section 133(1ZA), category (1) alone. Is there, in terms of compliance with the Convention, any sensible distinction between categories (1) and (2)? Category (1) is no more than a subset of category (2). If it is legitimate for the state to require a defendant to show at least that his or her case falls within category (2), on what basis could it be illegitimate for the state to require a defendant to show that it falls within category (1)? Putting the matter the other way around, the ECtHR has in para 133 in Allen implied that there would be an objection to requiring a defendant to show that the case fell within category (1). But it has not (at least in terms) addressed category (2). It may be that the ECtHR’s passing reference in para 133 to the inappropriateness of Lord Steyn’s test should be understood as embracing both categories (1) and (2). If so, then, as the preceding paragraph of this judgment shows, the effect would be largely to undermine the outcome of Allen itself. All that an applicant for compensation would need to do was assert this his or her claim fell into a higher category than category (3), and the state would be precluded from asserting the contrary, because to do so would be to infringe the ‘presumption of innocence’. 71.     ... If, to use the ECtHR’s further words in Allen , para 136, it demonstrates ‘a lack of respect for the presumption of innocence which [a defendant] enjoys in respect of the criminal charge ... of which she has been acquitted’ to refuse compensation on the ground that the defendant has not shown innocence, it would presumably also demonstrate a lack of respect for the presumption of innocence to refuse it on the ground that the defendant had not shown that she was not only acquitted, but also that there was no evidence upon the basis of which she could possibly have been convicted. The two situations are distinct as a matter of domestic criminal law, and the legislature has distinguished between them for the purposes of compensation. But to distinguish between them in terms of the Convention and in relation to the question of infringement of the presumption of innocence, would seem to do no more than add another fine and unconvincing distinction, in an area where the application of the Convention already appears too full of unsatisfactory and unsatisfying distinctions and uncertainties.” 34 .     Finally, with regard to the distinction in the Court’s case-law between acquittals and discontinuances, Lord Mance made the following observations: “40.     The rationale of any distinction between (‘true’) acquittals and discontinuance is not easy to understand. If the presumption of innocence is the key, one would have thought it equally applicable in both situations, or possibly even more so in a situation where the state has not felt able to pursue any criminal charges at all and has therefore discontinued. Be that as it may be, the application of any such distinction is itself fraught with difficulties – as is evident by a comparison of Sekanina itself with Allen . ... ... 42.     It appears that [in Sekanina ] the ECtHR not only disagreed with the Austrian Court of Appeal’s analysis of the trial and jury record, but also held it to be illegitimate, in terms of the Convention and in the context of compensation, for the Austrian courts to embark in the first place on any consideration whether suspicions remained in the light of the acquittal. Contrast the ECtHR’s recent judgment in Allen , where the ECtHR upheld the decision of the Secretary of State and of the courts judicially reviewing his decision that it was legitimate to refuse compensation on the ground that the CACD’s setting aside of Ms Allen’s conviction merely established was that the new evidence ‘might’ have led the jury to a different result - meaning that the conviction was unsafe. The jury’s acquittal in Sekanina was evidently analysed as a ‘true’ acquittal or exoneration, whereas the CACD’s was not. But what then would be the position if a criminal judge or court were (as can happen) to acquit a defendant on the basis that the prosecution had not established its case to the requisite criminal standard and/or that the defendant was entitled to the benefit of the doubt? Why should such an outcome at first instance be treated any differently from the outcome before the CACD on appeal in Allen ? And, if the two situations are alike, then the potential applicability of Sekanina must, in the light of Allen , be understood as severely limited in scope.” 35.     Lord Mance concluded that the appeals should be dismissed, since nothing in section 133(1ZA) or in the Justice Secretary’s rejection of the applicants’ claims for compensation involved any suggestion that they should have been convicted of the criminal offence with which they were charged. 36 .     Lady Hale considered that Article 6 § 2 was engaged, but did not accept that the Court would automatically find that it had been breached. She added: “78.     ... the Strasbourg court has drawn a distinction between (a) claims by a defendant for such things as costs or compensation arising out of the termination of a criminal case against him in his favour, either by acquittal or discontinuance, and (b) civil claims by or on behalf of third party victims against a former defendant in criminal proceedings which have been determined in his favour. In category (b) cases, where the parties are different, the standard of proof is different, the admissible evidence may also be different, and liability is not dependent upon criminal proceedings having been brought at all, the Strasbourg court has clearly accepted that the civil claim may be determined differently from the criminal proceedings without violating article 6(2). The important thing is the language adopted by the court when deciding the civil claim, as illustrated in the contrasting decisions in Ringvold v Norway (Application No 34964/97), and Y   v   Norway (2003) 41 EHRR 87. Lord Mance suggests that ‘the real test is, or should be, whether the court in addressing the civil claim has suggested that the criminal proceedings should have been determined differently’ (para 47). I agree, and I share his regret that, in Orr v Norway (Application No 31283/04), judgment of 15 May 2008, the Chamber, by a narrow majority, appear to have asked more of the civil court than this. While accepting that an acquittal in criminal proceedings is no bar to a civil claim for compensation based on the same facts, they appear to have demanded that the court hearing the civil claim phrase its decisions in less than fully transparent language. This is contrary to the rule of law: courts must always be able to explain their decisions fully, clearly and honestly. The one thing they must avoid is suggesting, in civil proceedings, that the defendant should have been convicted of the criminal offence. But I take comfort from the fact that this was the decision of a Chamber of the court, and by the narrow margin of four to three. 79.     This is not a category (b) case, but Lord Mance detects signs that the Strasbourg court might also be prepared, despite the breadth of its language in Allen v United Kingdom (2013) 63 EHRR 10, to adopt an approach to category (a) cases which in practice requires merely that the court determining the defendant’s claim for costs or compensation refrain from any suggestion that he should have been convicted of the offence. There is