FOURTH SECTION

DECISION

Application no . 30178/09 K.F. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:

Ineta Ziemele, President,

David Thór Björgvinsson ,

George Nicolaou,

Ledi Bianku ,

Zdravka Kalaydjieva,

Vincent A. De Gaetano,

Paul Mahoney, judges ,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 27 May 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, K.F., is a British national who was born in 1945 and lives in Redcar. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by QualitySolicitors Jordans , a firm of solicitors based in Doncaster. The Government were represented by Ms A. Sornarajah , of the Foreign and Commonwealth Office.

A. The circumstances of the case

2 . On 3 March 2000 the applicant was convicted at the Crown Court of five counts of indecent assault on his daughter, aged between seven and nine at the time of the incidents in question. He was acquitted of count six. He was sentenced to three years ’ imprisonment. His daughter ’ s evidence of indecent assault was supported by evidence from her grandmother, her mother and two doctors. The applicant ’ s defence was that the account given by the girl was made up by her at the instigation of her mother. In his summing up, the trial judge noted:

“If you accept the evidence of Drs . Gough and Askenasy , it is support, you may think powerful support, for the contention that this little girl was abused by somebody in the manner she describes, but nobody suggests that if they are wrong it in any way shows that there was no abuse.”

3 . The applicant ’ s application for leave to appeal against conviction was refused by the Court of Appeal on 12 January 2001.

4 . In April 2001 the applicant made an application to the Criminal Cases Review Commission (“CCRC”) to have his conviction referred to the Court of Appeal. In February 2002 the CCRC decided not to refer the case to the Court of Appeal.

5 . On 12 September 2005 the applicant applied again to the CCRC to have his conviction referred to the Court of Appeal. On 19 June 2007 the CCRC referred the conviction on four grounds, namely ( i ) new medical evidence which suggested that the medical evidence relied on at trial was flawed; (ii) material relevant to the applicant ’ s defence that the allegation had been fabricated which had not been available to the defence; (iii) the jury ’ s acquittal on count six was logically inconsistent with subsequent convictions on the remaining counts; and (iv) material misdirection in respect of the recent complaint evidence.

6 . On 8 October 2007 his conviction was quashed by the Court of Appeal; the prosecution did not oppose the appeal. Although all four grounds to which the CCRC report referred were before the court, it made reference only to the first ground. Latham LJ noted:

“4. ... There is now clear medical evidence to cast doubt on the views expressed by the two doctors at the trial referred to by the judge. Bearing in mind the terms in which the judge put that evidence to the jury, the fact that there is such doubt cast on their evidence means that this conviction cannot be safe and is accordingly quashed.”

7 . He continued:

“ The situation is that although at one stage the prosecution were minded to ask for a retrial, the position has now been reached which makes it plain that a retrial will be inappropriate. It is not therefore pursued, and accordingly the only order that we need make today is that the conviction of this appellant is quashed .”

8 . The applicant made a claim for compensation pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”).

9 . On 22 October 2008 the claim was refused by the Secretary of State on the basis that he did not accept that the applicant ’ s conviction was quashed on the grounds that the facts showed “beyond reasonable doubt that there had been a miscarriage of justice”. The letter continued:

“All that can be said is that the jury may or may not have convicted [the applicant] had the new evidence been available.”

10 . In January 2009 the applicant was advised by his lawyer that he did not have grounds for judicial review of the decision in light of the House of Lords decision in R (Mullen) v. Secretary of State for the Home Department [2004] UKHL 18 and the Court of Appeal judgment in R (Allen) v. Secretary of State for the Home Department [2008] EWCA Civ 808.

B. Relevant domestic and international law and practice

11 . For a summary of the relevant domestic and international law and practice, see the judgement of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09, §§ 43-77, 12 July 2013.

COMPLAINTS

12 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he did not have a fair trial in the proceedings before the Crown Court.

13 . He further complained under Article 5 § 5, Article 6 § 2 and Ar ticle 3 of Protocol No. 7 that he did not receive compensation for his wrongful conviction because judicial interpretation of section 133 of the 1988 Act had established that no compensation was payable where a person whose conviction was quashed on appeal might still have been convicted by a jury had the medical evidence been available to it.

THE LAW

I. THE CRIMINAL TRIAL

14 . The applicant, relying on Article 6 §§ 1 and 3 (c) of the Convention, complained that his trial before the Crown Court was unfair.

15 . It is clear from the Court ’ s case-law that an accused ’ s acquittal in general precludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6 (see Heaney and McGuinness v. Ireland , no. 34720/97, § 43, ECHR 2000 ‑ XII; Leszczak v. Poland ( dec. ), no. 36576/03, 19 May 2005; and Marttinen v. Finland , no. 19235/03, § 64, 21 April 2009 ).

16 . The applicant ’ s conviction was quashed in 2007 and no retrial was ordered. The Court is therefore satisfied that the applicant can no longer be considered a victim of any alleged violation of the general procedural guarantees of Article 6 of the Convention. His complaints under this head are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.

II. THE REFUSAL TO AWARD COMPENSATION

17 . The applicant complained that the refusal to grant him compensation constituted a violation of Article 5 § 5, Article 6 § 2 and Article 3 of Protocol No. 7 to the Convention.

18 . Article 5 § 5 provides :

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

19 . It guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the provisions of Article 5 (see Benham v. the United Kingdom , 10 June 1996, § 50, Reports of Judgments and Decisions 1996 ‑ III ). The applicant has not suggested that he has been arrested or detained in contravention of the provisions of Article 5 in the present case. It is noteworthy in this respect that the Court has consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see Benham , cited above, § 42). Article 5 § 5 is therefore not applicable in the present case and the applicant ’ s complaint must be rejected as inadmissible under Article 35 §§ 3 (a) and 4 on the ground that it is incompatible ratione materiae with the provisions of the Convention.

20 . Article 6 § 2 provides :

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

21 . The applicant argued that his right to be presumed innocent had been infringed by the Secretary of State ’ s approach to deciding compensation claims. He did not point to any particular phrase used by the Secretary of State which in his view gave rise to concern but rather focused on the approach adopted by the domestic courts in R (Mullen) and R (Allen) . He contended that no reasonable jury would have convicted him, had the new medical evidence been available.

22 . The Government submitted that the applicant had failed to exhaust domestic remedies because he had not sought to challenge the findings of the Secretary of State in the domestic courts. They further argued that the decision on compensation did not call into question the correctness of the finding that the conviction was unsafe and the fact that the applicant bore no criminal liability. They therefore invited the Court to declare the applicant ’ s complaint inadmissible on the basis that it was manifestly ill-founded.

23 . In Allen , the Court explained that the role of Article 6 § 2 in judicial proceedings following acquittal or the discontinuation of criminal proceedings was to protect individuals from being treated by public officials and authorities as though they were in fact guilty of the offence charged (cited above, § 94). The applicant in the present case complains that the Secretary of State treated him in such a manner. It is arguable that the applicant ought to have challenged the decision before the domestic courts, relying on his right under Article 6 § 2. However, he received legal advice to the effect that he had no grounds for challenge in light of the House of Lords decision in R (Mullen) and the Court of Appeal judgment in R (Allen) . The Court is satisfied that in the circumstances of the case the applicant has complied with the requirements of Article 35 § 1 of the Convention.

24 . In Allen , cited above, the Court explained that in order to show that Article 6 § 2 was engaged in proceedings which were subsequent to criminal proceedings, the applicant had to demonstrate the existence of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment; to engage in a review or evaluation of the evidence in the criminal file; to assess the applicant ’ s participation in some or all of the events leading to the criminal charge; or to comment on the subsisting indications of the applicant ’ s possible guilt (see § 104 of the Court ’ s judgment). In Allen , the Court accepted that there was a link between the criminal proceedings and the subsequent compensation proceedings brought under the 1988 Act. It observed that proceedings under the 1988 Act required that there had been a reversal of a prior conviction; this was the trigger for the right to apply for compensation for a miscarriage of justice. Further, in order to examine whether the cumulative criteria in section 133 were met, the Secretary of State and the courts in judicial review proceedings were required to have regard to the judgment handed down by the Court of Appeal (Criminal Division) (“CACD”) to identify whether the reversal of the conviction was based on new evidence and whether it gave rise to a miscarriage of justice (see §§ 107-108 of the Court ’ s judgment). The same analysis applies in the present case. The Court is satisfied that Article 6 § 2 applied to the proceedings whereby the Secretary of State decided whether to award the applicant compensation.

25 . The Court in Allen explained that where Article 6 § 2 applies, the compatibility of the proceedings with that Article will depend on their nature and context, and that the language used by the decision-maker will be of critical importance (cited above, §§ 125-126).

26 . In the present case, as in Allen , it is relevant that the applicant ’ s conviction was quashed on the ground that it was “unsafe” because new evidence might have affected the jury ’ s decision had it been available at trial. The CACD did not itself assess all the evidence, in the light of the new evidence, in order to decide whether guilt had been established beyond reasonable doubt. No retrial was ordered, on the ground that it would be “inappropriate”. The quashing of the applicant ’ s conviction resulted in a verdict of acquittal being entered but it was not an acquittal “on the merits” in a true sense: although formally an acquittal, the termination of the criminal proceedings against the applicant might be considered to share more of the features present in cases where criminal proceedings have been discontinued (see Allen , cited above, § 127).

27 . The Court in Allen found that there was nothing in the section 133 criteria themselves which called into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant ’ s criminal guilt (cited above, § 128). It explained that it was for the courts to interpret the legislation in order to give effect to the will of the legislature, and in doing so they were entitled to conclude that more than an acquittal was required in order for a “miscarriage of justice” to be established, provided always that they did not call into question the applicant ’ s innocence. The present applicant did not challenge the refusal to award him compensation before the domestic courts. What the Court must accordingly assess is whether, having regard to the nature of the task that the Secretary of State was required to carry out, and in the context of the judgment quashing the applicant ’ s conviction, the language employed in the compensation decision was compatible with the presumption of innocence guaranteed by Article 6 § 2 (see Allen , cited above, § 129).

28 . The Secretary of State refused compensation on the basis that he did not accept that the applicant ’ s conviction was quashed on the ground that the new evidence showed beyond reasonable doubt that there had been a miscarriage of justice. He considered that all that could be said was that a jury “may or may not” have convicted the applicant had the new evidence been available. He directed himself, as he was required to do under section 133 of the 1988 Act, to the need to establish whether there had been a “miscarriage of justice”. He did not comment whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, convicted. He did not comment on whether the evidence was indicative of the applicant ’ s guilt or innocence.

29 . The decision of the Secretary of State in the applicant ’ s case did not demonstrate a lack of respect for the presumption of innocence which he enjoys in respect of the criminal charge of which he had been acquitted. There is accordingly no appearance of a violation of Article 6 § 2 and the complaint must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

30 . The respondent State has not ratified Protocol No. 7 and this complaint is accordingly incompatible ratione personae with the provisions of the Convention and its Protocol. It must therefore be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President