A legal challenge over ‘miscarriage of justice’ compensation could go to the Supreme Court amid fears that a Court of Appeal ruling will almost eliminate such awards.

Victor Nealon, who served 17 years for attempted rape, and Sam Hallam, who served more than seven years for murder, were released after appeal judges ruled that fresh evidence made their convictions unsafe. 

But the Court of Appeal dismissed their claims for compensation on the grounds that fresh evidence had not proved their innocence beyond all reasonable doubt.

The claims were the first to be heard under a new test for compensation introduced two years ago. Under the previous test the standard of proof was whether, had fresh evidence been available at the start of the trial, no jury properly directed would have found them guilty.

Parliament changed the test due to 'uncertainty' around the previous definition of 'miscarriage of justice', by inserting a narrower definition, with effect from 13 March 2014.

The Court of Appeal also rejected the appellants’ contention that the new test was incompatible with article 6.2 of the European Convention on Human Rights, which guarantees a legal presumption of innocence.

The appeal court said it was bound by the Supreme Court's decision in Adams v Secretary of State for Justice which said that article 6.2 is not applicable to compensation claims.

Mark Newby, a solicitor-advocate at South Yorkshire firm QualitySolicitors Jordans, who represented Nealon, said under the new test it is now almost impossible to claim for compensation.

He said he would appeal to the Supreme Court so the matter could be considered afresh. He said a previous judgment in Allen v the United Kingdom by the Grand Chamber in the European Court of Human Rights suggested article 6.2 did apply.

Newby said the new standard of proof meant fresh evidence would need to give 100% proof that the appellants were innocent. ‘No forensic scientist will point to a 100% conclusion,’ he said.

Newby said with the new test ‘virtually nobody’ will succeed in claiming for compensation. He claimed that under the previous test both men would have been granted compensation.

‘People have no hope under the new test… It won’t just narrow the number of applications, it will take them to the point of vanishing.’