A victim twice over

Most people think that when a person has gone to prison when they shouldn’t have, that they will receive compensation when their conviction is finally overturned. However a most brutal law introduced in 2014 has meant the vast majority don’t get a penny.

 

The legal test in the Criminal Justice Act, section 133 (1ZA), introduced by the Coalition government in 2014, states that compensation is only available if the new or newly discovered fact that led to the conviction being quashed shows ‘beyond reasonable doubt’ that the person did not commit the offence.

 

During the parliamentary debate about the test, the late Jack Dromey MP said: ‘I stress again that the essence of our argument, and that supported by all parties and crossbenchers in the other place, is that an individual is innocent until proved guilty. We see no good reason why a victim of a miscarriage of justice should suffer a “beyond reasonable doubt” test.’

 

Labour’s Baroness Helena Kennedy, speaking in the other place, told peers that to ask people to prove their innocence beyond reasonable doubt was ‘an affront to our system of law’. ‘It is very difficult for people to prove that they are innocent beyond reasonable doubt: “Prove that you didn’t kill your baby; prove that you didn’t leave a bomb in the pub”,’ the human rights lawyer said.

 

The protestations of Dromey, Kennedy and others were ignored and as a result hardly anyone today gets compensation. From 2017 to 2022, of the 346 applications for compensation by miscarriage of justice victims, only 13 were granted – less than 4%. Innocent people who have spent many years in prison have been left destitute. One such case is that of Sam Hallam.

 

‘Someone to Blame’

 

On 17 May 2012 Sam Hallam walked out of the Court of Appeal a free man. Champagne bottles popped as a raucous crowd celebrated his release. Sam had been in prison since 2004, when just 17. Prior to his imprisonment he had never been to court. In 2005 he found himself giving evidence at the Old Bailey on a murder charge. He was convicted and sentenced to a minimum of 12 years.

 

The murder took place on Old Street, just on the outskirts of the City of London. A young group of locals had gone there from Hoxton to attend a fight. Twenty one year old trainee chef, Essayas Kassahun, tried to intervene but was stabbed and later died.

 

The evidence against Sam was weak. Two people identified him, but they did so inconsistently. The first witness initially said she had seen a black male hit the deceased with a baseball bat, within a group. She later identified Sam as ‘part of the group that attacked Essayas who had with him a baseball bat’. At trial she said: ‘I saw someone who looked like him’ and, ‘I was looking for someone to blame’. The second witness did not mention seeing Sam in his initial statement even though he knew him. Only after speaking with the first witness did he mention Sam. He initially described a white boy with blondish hair having a baseball bat. Sam had brown hair. The second witness at trial resiled from his identification, but was treated as a hostile witness to elicit his identification.

 

The only other evidence against Sam related to his alibi in police interview. His short written statement on legal advice said he had not been involved and believed he was playing football with his friend Timmy Harrington on the night of the murder. The police took a statement from Harrington who denied being with Sam any time that week. At trial Sam was portrayed as a liar. He was convicted in the absence of any forensic, CCTV or mobile phone evidence to connect him to the scene.

 

Sam had an appeal in 2006 focusing on the weak identification evidence. Despite the inadequacies, Lord Justice Latham upheld the conviction finding that the restracted testimony of the second ID witness ‘may have given the impression, even if not expressly in his answers, that he was accepting’ his previous identification. His barrister told him it was the end of the road.

 

Battle to overturn the conviction

 

To get a wrongful conviction overturned is an extraordinary feat for the very simple reason that the legal system rarely accepts fault. Fortunately for Sam, Paul May attended his appeal. May, a brilliant campaigner, led the successful Birmingham 6 and Bridgewater 4 campaigns. He formed a close bond with Sam’s mother Wendy who was the spokesperson for the campaign.

 

Sam came from a strong working class community in Hoxton. A public meeting was called in the local Regan Way community hall, which May described: ‘I expected a few people to be there. When I turned up, there were more than 200 people inside. They were friends, neighbours, members of the family, people in the community who knew Sam. That was the thing that struck me – they were from his community, they knew Sam Hallam, they had known him since he was a child, and they knew he wasn’t the sort of guy to get involved in something like this.’

 

There were protests locally; an art exhibition by a fellow victim of wrongful conviction, Patrick Maguire; young musicians played outside the Ministry of Justice; a busload went to Sam’s prison for his 21^st birthday; the actor, Ray Winstone, related to a friend of Sam’s, produced an ITV’s Tonight programme where he interviewed several witnesses who confirmed Sam wasn’t at the scene; and there was even a play, Someone to Blame, performed at the Kings Head in Islington.

 

May gathered together statements from witnesses who said Sam was not at the scene who the defence had not located. He sent them to the Criminal Cases Review Commission (CCRC) to seek a referral back to the Court of Appeal. At the CCRC, Glenn Mathieson, then took up the baton. Glenn was an impressive case review manager, who sadly has since moved on from the CCRC. He interrogated the file and identified some irregularities. Within the unused material was hidden away the fact that a different Sam had originally been mentioned to the police as a suspect. Concerns about the police investigation led the CCRC to use their statutory powers to instruct an independent police force to re-investigate the case.

 

This good news was met with personal tragedy for Sam and his family. Sam’s father Terry, a strong supporter of the campaign, shortly after hearing the news committed suicide.

 

The Thames Valley Police investigation led by senior investigating officer Steve Tolmie interviewed over 100 witnesses. Tolmie’s report raised glaring errors in the original investigation. It confirmed that the intended victim on the night, Louis Colley, knew Sam Hallam and said he was not there that night. Fourteen witnesses in total were identified who said Sam was not present. Tolmie’s investigation also discovered that on Sam’s phone was evidence that placed him in the pub with his father on the night of the murder and playing football with his friend on the day after. It supported that his ‘false alibi’ could have been mistaken rather than a lie. This finding was one of the three reasons why the conviction was eventually quashed by the Court of Appeal.

 

Three roars at the Court of Appeal

 

On the first day at the Court of Appeal Sam’s appeal counsel, Henry Blaxland QC, supported by junior Peter Wilcock QC, dismantled the identification evidence, and argued a separate legal point where the evidence of a trial witness who said Sam was not at the scene was unfairly summed by the judge.

 

There were only three journalists present: David Rose of the Mail on Sunday; Kim Evans of the Justice Gap and my brother Tom for the Camden New Journal. After lunch prosecution counsel unexpectedly rose to inform the Court the prosecution no longer opposed the appeal. A hush was followed by an almighty roar from the public gallery. It felt like the whole of Hoxton had turned up. It was followed by another at the end of the day when Sam was granted bail.

 

Henry, Peter, Paul May and I were walking across the grand ornate inner courtyard of the Royal Courts of Justice having seen Sam who was being processed in the cells. A group of campaigners stood at the far end of the courtyard applauded us. I regret to this day we didn’t just stop and applaud them back for what they had done over many years.

 

On the second day a media frenzy turned up. The conviction was formally quashed, with another wonderful roar from the gallery. Commander Simon Foy, head of the Homicide and Serious Crime Squad provided a statement to the press: ‘It is a matter of deep regret that Sam Hallam lost his liberty due to what has subsequently been found to be an unsafe conviction … there are undoubtedly certain lessons to be learned for police and the wider criminal justice system from today’s judgement which we will carefully consider.’

 

Shameful

 

Today Sam’s case makes me feel ashamed to have any part of the so called justice system. Despite apologies from the police no published review of the failures has taken place. Rather than provide care and support to Sam he has been forced to fight over years to try and get a single penny of compensation. Simon Hattenstone’s recent interview in The Guardian reveals the personal toll on Sam.

 

The law now says Sam is innocent but the state won’t recognise that they were at fault. The Supreme Court heard his case for compensation but the brutal test ‘innocence’ compensation remains intact.

 

A recent judicial review case, The King (On the Application of Ahmed Mohamed Ali Adan v The Secretary of State for Justice [2023] EWHC 3059 (Admin)) was taken by another successful appellant cleared of indecent assault. DNA was subsequently discovered on a crucial exhibit belonging to someone else, who unlike the appellant had relevant previous convictions. As a result Mr Adnan’s conviction was quashed but he too was denied compensation. The judicial review of this decision failed, confirming even where another suspect is in the frame making it is much more likely that an appellant is entirely innocent (and for which he could never properly be retried) no compensation is forthcoming, simply because he cannot prove his innocence beyond all reasonable doubt.

 

In July last year Sam’s compensation case was heard by the Grand Chamber of the European Court of Human Rights along with another applicant, Victor Nealon. The question they are dealing with is a simple one. Does the new test for compensation offend the presumption of innocence? Hopefully the Court will confirm that the provision of compensation only to those who can prove beyond all reasonable doubt their innocence is incompatible with Article 6 of the European Convention.

APPEAL makes the following recommendations to the Law Commission in its review of criminal appeals: