The extended meaning given by the European Court of Human Rights to the presumption of innocence (Art 6 § 2 of the Convention) requires a court, in declining to interfere with a refusal to award compensation to a defendant whose conviction was quashed on appeal and for whom no retrial was ordered, to avoid language that suggests the defendant was guilty: Allen v United Kingdom [2013] ECtHR 678 (12 July 2013).
New expert evidence cast doubt on the strength of the evidence that had been given against the defendant at the trial, although on the appeal against conviction the Court of Appeal (Criminal Division) observed (as recorded in [20] of the Grand Chamber's judgment in Allen):
"[153] ... We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed."
This is quite different from concluding that no reasonable jury could have convicted the defendant. Compensation might be awarded to a defendant who, on the basis of new evidence, is shown to have been actually innocent of the crime for which a term of imprisonment has been partly or wholly served, or to a defendant in respect of whom, in the light of new evidence, no reasonable jury could properly have convicted: Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 (11 May 2011), noted here on 15 May 2011).
An inroad on this was sought to be made in Allen by resort to the extended (or what the Grand Chamber called the "second aspect" of the) presumption of innocence. This is [94]:
"... in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person's reputation and the way in which that person is perceived by the public. To a certain extent, the protection afforded under Article 6 § 2 in this respect may overlap with the protection afforded by Article 8 (see, for example, Zollman v. The United Kingdom (dec.), no. 62902/00, ECHR 2003-XII; and Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, §§ 27 and 56-59, 16 October 2008)."
The Grand Chamber held that this aspect of the presumption of innocence did indeed apply to this claim for compensation because there was a sufficient link between the quashing of the conviction without order for retrial and the claim for compensation [104], [107]-[108].
It was therefore necessary to look at the language used by the Court of Appeal in the civil proceedings when it dismissed the defendant's appeal against refusal of compensation [129]. The Grand Chamber concluded [134] that the language used by the domestic courts emphasised that it would have been for a jury to assess the new evidence, had a retrial been ordered, and did not undermine Ms Allen's acquittal.
The Grand Chamber was unanimous, but Judge De Gaetano delivered a short separate opinion, saying that the relevance of the presumption of innocence in such cases should be reassessed. He believes that the presumption has no place in civil compensation proceedings.
The case is interesting for its illustration of the use of the presumption of innocence. In a narrow and largely uncontroversial sense the presumption of innocence is a procedural guarantee in the context of a criminal trial, imposing requirements in respect of the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-trial publicity (with reservations noted below), and premature expressions by a trial court or by other public officials, of a defendant's guilt [93].
The presumption of innocence may have a role in pre-trial procedures, such as bail applications, although this will usually be modified by statute allowing consideration of the strength of the prosecution evidence and, for some defendants, placing on the applicant the burden of persuading the court that bail should be granted. The relevance of the presumption to name suppression decisions may be doubted (see, for example, Suppressing Names and Evidence (NZLC IP13 2008) at 3.56-3.57, and in its final report the Law Commission did not mention the presumption of innocence, only the presumption of openness: NZLC R109 2009).
