'Innocent Until Proven Guilty': Lorraine Allen

“Innocent until proven guilty” is a phrase we’ve all heard of. It must be one of the most frequently mentioned legal maxims in modern literature. Many could explain to you that the phrase alludes to the ‘presumption of innocence’ i.e. if anyone is accused of a crime, they are considered innocent until there are proven guilty before a court. This right is enshrined in Article 6(2) of the European Convention on Human Rights. The story of Lorraine Allen, however, poses some very complex legal questions about its application and also casts doubt over how the right applies in practice.

Lorraine’s story

On December 4th 1998 Lorraine took her baby Patrick for an immunisation. In the early hours of the following morning Lorraine called her GP Dr Barber as Patrick appeared to have difficulty breathing. Dr Barber concluded that the baby was well and he left. He had seen no signs of abuse or bruising later describing Lorraine as an “experienced and sensible mother”. An hour later Lorraine rang 999 as she could not wake Patrick up. The ambulance crew were unable to resuscitate him and he was later placed on a life support machine. The paediatrician that saw Patrick found gross pre-retinal haemorrhages but no external injuries. Unfortunately, he died on December 6th.

Lorraine was accused of manslaughter. The prosecution’s case was that, although there were no external injuries and no history of fractures or bruising, there existed a “triad of symptoms” (swollen brain an subdural and retinal haemorrhaging) that conclusively pointed to Patrick being seriously shaken sometime after Dr Barber had left. This expert medical evidence was followed by a conviction by a jury on 7th September 2000 and Lorraine was sentenced to three years imprisonment and she served 18 months.

In 2005, medical research saw Lorraine’s conviction quashed by the Court of Appeal. This research conflicted the research that the “triad of symptoms” could only be caused by severe shaking, and as a result her conviction was overturned without a retrial.

Lorraine applied for compensation as a victim of a miscarriage of justice. However, this was turned down by the Secretary of State who claimed that she did not meet the statutory criteria under section 133 of the Criminal Justice Act 1988. She attempted to bring about judicial review but this was refused in both 2007 and 2008.

The case goes to Strasbourg

Lorraine argued that the refusal by the High Court and the Court of Appeal in her case was based on reasons that gave rise to doubts about her innocence. She argued that the Court of Appeal’s judgment clearly implied that she could potentially have been convicted had she been retried and pointed out that the requirement that a person prove her innocence had been found to be a violation of Article 6(2) in a number of cases (such as Capeau, Puig Panella and Tendam). She argued that if a State imposed a requirement that innocence be established before compensation was payable, it was inevitable that a finding that compensation was not payable implied that the State was questioning the person’s innocence. Finally she referred to the Court’s case law, which indicated that even the mere voicing of doubts regarding innocence was incompatible with Article 6(2) where there had been an acquittal (citing Sekanina, Rushiti and Diacenco). She insisted that hers was plainly an acquittal based on the merits (as opposed to a discontinuation of proceedings) as the Court of Appeal, when quashing her conviction, had found that the factual and evidential basis of the conviction had been undermined. She concluded therefore the courts had questioned her innocence.

The Government disputed that there had been a violation of Article 6(2) in Lorraine’s case. They argued that the cases to which the applicant referred “could not be interpreted as justifying an extreme interpretation of Article 6(2) to the effect that once a person had been acquitted she must be treated always as positively innocent for all purposes.”

The Government contended that in previous cases the Court’s concern had been with the way in which the decision to refuse compensation had “left no doubt that it was based on presumed guilt; the words used had gone beyond mere suspicions or suppositions.” They argued there was no similar problem with the refusal of compensation under section 133 of the 1988 Act generally or with the specific refusal in the applicant’s case. Refusal of compensation would be compatible with Article 6(2) if it was clear from the language used that no guilt could be imputed to the applicant. The Government concluded that nothing in the domestic judgments undermined or cast doubt on the applicant’s acquittal. There had therefore been no violation of Article 6(2) in the present case.

The Court’s decision

Strasbourg did not consider that the language used by the domestic courts undermined Lorraine’s acquittal nor did they treat her in a manner inconsistent with her innocence. They had never commented on whether the applicant should have or should not have been found guilty and they consistently said it would have been for a jury to decide. The Court noted that the decision not to order a retrial in the applicant’s case spared her the stress and anxiety of undergoing another criminal trial and that she did not argue that there ought to have been a retrial. Both the High Court and the Court of Appeal had referred to the Court of Appeal to determine whether a miscarriage of justice had arisen and did not seek try to reach any conclusions about Lorraine’s case. They accepted the findings and drew on them in order to assess whether the section 133 criteria had been satisfied. The Court was satisfied that the judgments of the High Court and the Court of Appeal did not demonstrate a lack of respect for the presumption of innocence and found no violation of Article 6(2) of the Convention.

Where does this leave us?

This ruling does not go as far to say that no one in Lorraine’s situation would ever be able to seek compensation as a victim of miscarriage of justice, but rather that the language must have been more offensive to the presumption than in this case. However the court has set a very restrictive precedent. We’ll never know what happened to Patrick and whilst there is logic to the courts reasoning, it all leaves a rather sour taste in the mouth. Especially when considering the following from the Court of Appeal after Lorraine’s conviction was quashed:

“Accordingly, Lorraine Harris had her good name returned to her but unfortunately her life was ruined. Her baby had died and she was never allowed the opportunity of grieving for him. Her relationship with Mr Maguire collapsed under the pressure of the trial and conviction and she had to serve her sentence. Whilst on bail awaiting trial she had become pregnant and gave birth to another child whilst in prison after her conviction. The child was taken away from her and placed for adoption and even after the appeal Lorraine was not allowed any form of contact.”

Was justice done here?