Adams, R (on the application of) v Secretary of State for Justice

Section 133 of the Criminal Justice Act 1988 (“the 1988 Act”) provides:

“(1)... when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed...on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction.....unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

.....

(5)

`In this section “reversed” shall be construed as referring to a conviction having been quashed—

(a)

on an appeal out of time....

(b)

on a reference---

(i)

under the Criminal Appeal Act 1995; or..”

In these proceedings, the appellant seeks judicial review of the decision by the Secretary of State in a letter dated 3 January 2008 that he was not entitled to compensation under section 133(1). The Divisional Court (Maurice Kay LJ and Simon J) dismissed his application on 4 February 2009. He now appeals with the permission of Carnwath and Toulson LJJ.

In short, the Secretary of State refused the application for compensation because (i) the appellant’s conviction was not reversed on the basis of new or newly discovered facts and (ii) if there were any new or newly discovered facts, they did not show beyond reasonable doubt that there had been a miscarriage of justice. Both reasons are challenged. Simon J (with whom Maurice Kay LJ agreed) upheld the reasoning of the Secretary of State on the new or newly discovered facts issue. As to whether there had been a miscarriage of justice, he referred to the two views expressed in R v Secretary of State for the Home Department ex p Mullen [2004] UKHL 18, [2005] 1 AC 1 as to the meaning of “miscarriage of justice” (the narrow interpretation adopted by Lord Steyn (supported by Lord Rodger) and the wider interpretation adopted by Lord Bingham) and held at [38(iii)] that the appellant could not satisfy either interpretation on the facts of this case. Accordingly, he had not proved that there had been a miscarriage of justice. It is submitted by Mr Owen QC that the appellant should have succeeded on both issues.

On 18 May 1993, the appellant was convicted of murder at Newcastle Crown Court and sentenced to life imprisonment. Following a reference of his case by the Criminal Cases Review Commission, on 12 January 2007 the Court of Appeal Criminal Division (“CACD”) allowed his appeal on the basis that, owing to inadequacies in the conduct of his case by his then legal representatives, there had been a failure by them to discover and deploy at the trial three pieces of evidence from the “unused material” which had been made available by the prosecution (“the undeployed evidence”).

These were identified by the CACD as (i) the Kevin Thompson material (referred to at paras 72-78 of their judgment); (ii) the West Road stop material (referred to at paras 83-92 of the judgment); and (iii) the Coalway Lane getaway material (referred to at paras 110-122 of the judgment).

The relevant facts and the relevant parts of the judgment of the CACD are succinctly set out at paras 6-21 of the judgment of Simon J. What Simon J said appears as an appendix to this judgment. The CACD considered that there was force in the prosecution submissions that (i) the case against the appellant was a strong one; (ii) the judge had given the jury a clear and firm warning about the dangers of relying on Kevin Thompson’s evidence; (iii) there had been compelling corroborative evidence from witnesses who were friends of the appellant, which supported Mr Thompson’s evidence; and (iv) there would have been a high risk that, if the appellant had used the undeployed evidence, his bad character might have been introduced and the prosecution might have been able to lead rebuttal evidence to show Mr Thompson’s consistency.

On the other hand, the CACD also considered that the case against the appellant was by no means overwhelming, given that there was no forensic evidence to link him to the murder; the corroborative witnesses did not say that he had admitted the murder; and John Hands had been acquitted on an almost identical case. The CACD also found that the strategy adopted by the appellant’s legal representatives had been a reasonable one, which had succeeded in defeating the prosecution’s attempt to put in the appellant’s bad character.

The court said that all of the undeployed evidence had been available to the appellant and his legal representatives at the time of the trial, but it remained unknown to counsel conducting the trial, because of the deficiencies in the preparation of the case. They said:

“155.

None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before trial. But the failure to use this evidence, in our judgment, demonstrates that, for whatever reason, the legal advisers at trial had failed in those respects in their pre-trial preparations. The reason for this is not hard to see. The principal cause of these failures was, in our view, the late return of their instructions by counsel first instructed. At the date when the briefs were returned much preparatory work remained to be done. Some confirmation for this finding is to be found in a note made by Mr Cosgrove for the conference to be held on 8 April 1993 to which we have referred above (see para 48). We find that not all of the essential preparatory work was carried out. It was this deficiency in pre-trial preparation which caused the failures which we have identified. It would be unfair to blame Mr Fordham and Mr Menary alone for all these failures. We have no doubt that they did their best. We have also no doubt that they believed that everything that ought to have been done had been done. But in our judgment they underestimated the time needed to complete the work.

156.

It is difficult to conclude that the criticisms and failures which we have found in respect of any one of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together, cumulatively they were sufficient to render the verdict unsafe. Each of these topics was important. The relevance of the Kevin Thompson unused material was, as Mr Menary conceded to the CCRC "crucially important". The West Road stop was a very important part of the prosecution case. It went largely unchallenged by the defence at trial. The ability meaningfully to probe it in the way suggested is in our view significant. Finally, the Coalway Lane getaway evidence represented an opportunity further to undermine Kevin Thompson's evidence of his alleged assistance given to the appellant and Hands in carrying out the murder.

157.

We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe. The appeal will be allowed and the conviction quashed.”

It is common ground that section 133 of the 1988 Act must be interpreted in the light of article 14(6) of the International Covenant on Civil and Political Rights 1966 (“ICCPR”), which provides:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed...on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

Simon J held that the three pieces of evidence which led the CACD to allow the appeal were not new or newly discovered facts. He expressed his reasons in the following terms:

“45.

I also see the attractions of the argument that, if the words ‘shows beyond reasonable doubt that there has been a miscarriage of justice’ are to be given a confined meaning, then the phrase ‘new or newly discovered fact’ should be given a wide interpretation, since it assumes that whatever is new or newly discovered leads to the clear conclusion that the defendant was innocent or (on Lord Bingham's broader construction) should clearly have not been convicted. However I am hesitant about accepting a prescriptive approach in the light of, (1) the importance of an autonomous construction of the phrase which ought to be argued on fuller material than was (quite reasonably) deployed before us; and, for this reason, (2) the remarks of Lord Bingham in paragraph 6 of Mullen and paragraph 7 of In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289. In the former case he described the difficulty and sensitivity of questions affecting the payment of compensation to acquitted criminal defendants; and in the latter he expressed the two reasons,

… The first is that ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just deserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter. The second source of difficulty and sensitivity derives from the interaction, in this field, of judicial and executive activity. Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside. This is reflected in section 14(1)(a) of the Criminal Appeal (Northern Ireland) Act 1980 and is currently reflected in section 10 of the Criminal Appeal Act 1995, providing for suspect convictions to be referred to the Court of Appeal for a final decision. Only very rarely could it be appropriate for the executive to act in a way which threw doubt on a judicial decision.

46.

In the light of these considerations I would confine myself to the facts of the present case. These are clear. As the Court of Appeal expressed itself in the present case at paragraph 155,

None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before the trial.

47.

It was in existence and available for inspection. Before the trial the Crown had repeatedly invited the Defence to inspect the material, see paragraph 78 of the CCRC Statement of Reasons. The fault was that the Defence team had failed to accept the offer of inspection; and therefore did not know what was in the unused material. In my view, and even without the fuller review which I have suggested above, there are grave difficulties in characterising such material as ‘new or newly discovered fact.’ The phrase is inapt to describe something which is available to be discovered by the legal representatives, but was not.”

Mr Tam QC seeks to uphold this reasoning. He submits that the undeployed evidence was no more new or newly discovered facts than would have been evidence which had been disclosed and was known to counsel conducting the trial, but which counsel had erroneously decided not to use. The only distinction that could be drawn between the two cases would be that in one, counsel’s error lay in not making themselves aware of evidence that was available to them and in the other it lay in not making use of evidence of which they were aware. But, he submits, that distinction does not imbue the former evidence with the character of being “new or newly discovered”. A fact which was known to the prosecution at the time of the trial and knowable to the defence because it was available to them, but which they did not know because they did not take the steps that they should have taken to examine the evidence, cannot be regarded as “new or newly discovered”.

In my judgment, a “new or newly discovered fact” is a fact that was unknown at what I shall call “the relevant time” i.e. during the trial process or an in-time appeal. The paradigm example of a new or newly discovered fact is evidence which could have been adduced at the trial and was unknown at the relevant time, either because it did not exist or because, although it existed, it had not then been discovered.

To whom does the fact have to be new and by whom does it have to be newly discovered? As we have seen, the Divisional Court said that it had to be new to and newly discovered by the convicted person and his legal representatives. As I have said, Mr Tam submits that the Divisional Court construction is correct. Mr Owen submits that it is only the knowledge of the convicted person that is relevant. There is no authority on this point. In R (Murphy) v Secretary of State for the Home Department [2005] EWHC 140 (Admin), [2005] 1 WLR 3516, the Divisional Court (Richards and Pitchford JJ) was concerned with a case where material had not been disclosed to the defence before or during the trial. But the material was disclosed between the trial and the in-time appeal. The court held that, since the material was known at the time of the first appeal, it did not amount to a “new or newly discovered fact”: see [58]. But there was no issue as to whether disclosure to the applicants’ legal representatives, as opposed to the applicants themselves, meant that the material constituted new or newly discovered facts.

I reject the Secretary of State’s submissions for the following reasons. First, it is difficult to accept that those who drafted article 14(6) of the ICCPR intended to deny compensation to a person whose conviction is reversed on the basis of material which was available to his legal representatives and which, if deployed, would (in an extreme case) have shown that he was innocent. Yet that is the effect of Mr Tam’s construction of “new and newly discovered fact”. It is common ground that section 133 was enacted to give effect in domestic law to article 14(6). That article cannot be interpreted on the footing that states which were signatories to the ICCPR would necessarily have in place discretionary compensation schemes in respect of miscarriages of justice where the rigorous requirements of article 14(6) are not satisfied. For the same reasons, it is no answer to say that an innocent person who has been wrongly convicted as a result of the negligence of his legal representatives may be able to recover damages in civil proceedings.

Secondly, there is no need to interpret “new or newly discovered fact” in a way which yields such a draconian result as that for which Mr Tam contends. It is important to bear in mind that compensation is not payable unless the new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Thus the standard of proof is high. Proof on a balance of probabilities will not suffice. And then it must be shown that there has been a miscarriage of justice. In many (probably most) cases where a conviction is reversed on the grounds of a new or newly discovered fact, the fact will not show beyond reasonable doubt that there has been a miscarriage of justice, whether one adopts Lord Steyn’s narrow definition or Lord Bingham’s rather broader interpretation of that expression.

Thirdly, it seems to me that the focus of the language of the provisions is on the convicted person. He is the person who has been convicted and whose conviction has been reversed. If he has suffered a miscarriage of justice, he is entitled to compensation unless the non-disclosure of the unknown fact was wholly or partly attributable to him. There is no mention of his legal representatives in article 14(6) or section 133(1). And yet legal representatives are mentioned elsewhere in article 14. Thus article 14(3) of the ICCPR provides that one of minimum guarantees to which everyone facing a criminal charge is entitled is the right “(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing” and “(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”. Mr Tam rightly concedes that “the person convicted” referred to in the words of exclusion at the end of article 14(6) and section 133(1) does not include his legal representatives. But if his construction of “new or newly discovered fact” is right, compensation is payable where facts emerge which are new to both the convicted person and his legal representatives; but is not payable where the non-disclosure of the new or newly discovered fact is wholly or partly attributable to the convicted person, although it is payable where the non-disclosure is wholly or partly attributable to the convicted person’s legal representatives. I can think of no good reason why, if Mr Tam is right, such a distinction should be drawn between the convicted person and his legal representatives. In my judgment, the fact that compensation is excluded (if the other conditions of the provisions are satisfied) only if non-disclosure is attributable to the convicted person indicates that the new facts must be new to the convicted person himself and that compensation is not denied to him if facts emerge which are new to him, although they were known to his legal representatives.

In my judgment, therefore, the person whose knowledge is relevant is the convicted person. On the facts of the present case, the appellant had no personal knowledge of the undeployed evidence and for that reason I would resolve the “new or newly discovered fact” issue in his favour.

Even if Mr Tam’s construction is correct, there is another reason why in my view the appellant should succeed on this issue. Article 14(6) and section 133(1) are concerned with facts which were not previously discovered, not with facts which were not previously discoverable. Similarly, the excluding words at the end of both provisions refer to the non-disclosure of facts which were [previously] unknown, not to facts which were unknowable or not reasonably discoverable. Thus, the provisions are not concerned with whether the fact or facts were “knowable” (to use Mr Tam’s word) or “available to be discovered” (to use the language of para 47 of Simon J’s judgment). The undeployed evidence was not known to the appellant or his legal representatives. The fact that trial counsel should have discovered the undeployed evidence is immaterial. For this additional reason, therefore, I would allow the appeal on this issue.

The question what is meant by “miscarriage of justice” has not been resolved by the courts. As Toulson LJ said when giving permission to appeal in the present case, there are at least three classes of case where the CACD allows an appeal against conviction on the basis of fresh evidence. I shall call them “category 1”, “category 2” and “category 3” cases. A category 1 case is where the court is sure that the defendant is innocent of the crime of which he has been convicted. An obvious example is where DNA evidence, not obtainable at the time of trial, shows beyond doubt that the defendant was not guilty of the offence. A category 2 case is where the fresh evidence shows that he was wrongly convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted. An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness, so that no fair-minded jury could properly have convicted on the evidence of that witness. It does not follow in a category 2 case that the defendant was innocent. A category 3 case is where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair-minded jury could properly convict if there were to be a trial which included the fresh evidence. The court concludes that a fair-minded jury might convict or it might acquit. There is a fourth category of case to which Lord Bingham referred in Mullen. This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

The majority of successful appeals against conviction in the CACD are category 3 cases. In such cases, whether a retrial is ordered depends on all the circumstances of the case, including the seriousness of the offence, the length of time that the defendant has been in custody and how long he still has to serve. The present case was neither a category 1 nor a category 2 case. On any view, it was a category 3 case. As I have said, the CACD accepted that there was some force in the submissions made on behalf of the prosecution that the case against the appellant was strong. Nevertheless, they said that the case was “by no means overwhelming”. In other words, they did not say that no fair-minded jury could properly have convicted if the undeployed evidence had been before them. The appellant had already been in custody for some 15 years when the CACD allowed his appeal. No doubt it was for that reason that there was no order for a retrial. Mr Owen would, I think, accept that this was a category 3 case. But he submits that it was also a category 4 case. His central submission is that the appellant suffered a miscarriage of justice according to Lord Bingham’s interpretation of that expression.

In Mullen, the defendant’s conviction was quashed by the CACD on the grounds that his deportation from Zimbabwe to the United Kingdom to stand trial had involved an abuse of process rendering his conviction unsafe. He did not argue that he was innocent of the offence of which he was convicted. His application for compensation under section 133 of the 1988 Act was refused by the Secretary of State. His claim for judicial review was dismissed by the Divisional Court. This court allowed his appeal, but the House of Lords allowed the appeal of the Secretary of State.

The Secretary of State’s submission (advanced in all the cases in which this issue has arisen) was that a miscarriage of justice extended only to category 1 cases. Lord Bingham started his analysis by discussing the meaning of “wrongful conviction”. At [4] he said:

“It is apparent from their statements that Mr Jenkins and Mr Hurd were addressing the subject of wrongful convictions and charges. For present purposes, wrongful charges need not be considered. The expression "wrongful convictions" is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

Lord Bingham said at [8] that the CACD had identified no failure in the trial process. Since it was for failures of the trial process that compensation was payable under section 133 and article 14(6), he held on that limited basis that the Secretary of State was not bound to pay compensation in that case. At [9], he considered the submission of the Secretary of State that compensation was only payable where it was shown that the defendant was innocent, but said that, having reached the conclusion that compensation was not payable on the limited basis to which I have referred, he need form no concluded view on the point. Nevertheless, he went on to say why, on the materials before the House, he would hesitate to accept it. The reasons he gave were:

“9.

The central submission of the Secretary of State was that section 133, reflecting article 14(6), obliges him to pay compensation only when a defendant, finally acquitted in circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he had been convicted. Having reached the conclusion already expressed, in favour of the Secretary of State, I need form no concluded opinion on this submission, which is strongly challenged by Mr Mullen. But in deference to the very detailed arguments advanced by Mr Sales and Mr Pleming I should very briefly indicate why, on the materials now before the House, I would hesitate to accept it.

(1)

The expression "miscarriage of justice" in section 133 is drawn directly from the English-language text of article 14(6). In the article the expression describes a concept which is autonomous, in the sense that its content should be the same in all states party to the ICCPR, irrespective of the language in which the text appears. Nonetheless, "miscarriage of justice" is an expression which, although very familiar, is not a legal term of art and has no settled meaning. Like "wrongful conviction" it can be used to describe the conviction of the demonstrably innocent: see People (DPP) v Pringle (No 2) [1997] 2 IR 225, 230, 236, 246. But, again like "wrongful conviction", it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted: see, for example, People v Wilson 138 P 971, 975 (1913); Robins vNational Trust Company Ltd [1927] AC 515, 518; Sir John May, Return to an Address of the Honourable the House of Commons dated 30 June 1994 for a Report of the Inquiry into the Circumstances surrounding the Convictions arising out of the Bomb Attacks in Guildford and Woolwich in 1974 (HC 449, 1994), paras 21.3-21.4. When section 133 (as it was to become) was debated in the House of Lords, the minister was pressed to say whether a miscarriage of justice connoted the innocence of a defendant or the raising of a doubt about his guilt, but the minister said nothing to suggest that compensation would be payable only to the innocent: HL Deb., 22 July 1988, cols 1631-1634.

(2)

The House was referred to the travaux préparatoires of the negotiations which culminated in adoption of the ICCPR. It is plain that some delegates contended that compensation should not be paid save to those who were shown to be innocent, and such delegates found no difficulty in expressing this very simple principle. But it is equally plain, as Mr Pleming submitted, that every proposal to that effect was voted down. The travaux disclose no consensus of opinion on the meaning to be given to this expression. It may be that the expression commended itself because of the latitude in interpretation which it offered.

(3)

Little assistance is in my opinion gained from the jurisprudence of the UN Human Rights Committee. In Muhonen v Finland (No 89/1981, 8 April 1985) the Committee found no violation of article 14(6) where an applicant had been pardoned on grounds of equity and not miscarriage of justice. But it did not attempt to define the latter expression. Nor did it in Irving v Australia (No 880/1999, 1 April 2002), where the decision of the majority, rejecting the applicant's claim, turned on the absence of a new or newly discovered fact.

(4)

Article 3 of Protocol 7 to the European Convention is in much the same terms as article 14(6) of the ICCPR and was adopted to bring the terms of the Convention into line with those of the ICCPR. As Lord Steyn has explained, a Committee of Experts on Human Rights drafted and issued an Explanatory Report. Paragraph 25 contains a passage on which the Secretary of State understandably placed heavy reliance: "The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person was clearly innocent". This passage plainly assists the Secretary of State. But (i) the United Kingdom has neither signed nor ratified Protocol 7. (ii) many more states are parties to the ICCPR than to the European Convention or Protocol 7, and they cannot be bound by a later commentary on a different instrument. (iii) the Report is prefaced by a statement that it does not constitute an instrument providing an authoritative interpretation of the text of the Protocol. (iv) paragraph 25 does not appear to be altogether consistent with paragraph 23, which suggests that a miscarriage of justice occurs where there is "some serious failure in the judicial process involving grave prejudice to the convicted person"; (v) the simple and readily intelligible reference to "innocent" in paragraph 25 is to be contrasted with the absence of any such word in Protocol 7, article 3 (or, of course, article 14(6) of the ICCPR).

This last observation is applicable also to article 626 of the French Code de Procédure Pénale, where there is reference to "un condamné reconnu innocent". The French version of article 14(6) and article 3 of Protocol 7 refers not to innocence but to "une erreur judiciaire" (in Spanish, "un error judicial"). These expressions can be understood as equivalent to "miscarriage of justice" in its broad sense, but are not obviously apt to denote proof of innocence.

(5)

The Secretary of State has not, to my mind, demonstrated a consensus of academic opinion in favour of his interpretation. It is true that Stavros (The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights, 1993, p 300) observes that "It is, therefore, possible for a person whose conviction has been quashed not to receive compensation where, instead of an acknowledgement of his clear innocence, a mere reasonable doubt arises as to his guilt". But the only authority quoted for this observation is the Explanatory Report discussed above. A different view is taken by van Dijk and van Hoof (Theory and Practice of theEuropean Convention on Human Rights, 3rd ed, p 689) who write:

"In what follows the Explanatory Report seems to imply that reversal on the ground that new facts have been discovered which introduce a reasonable doubt as to the guilt of the accused is not enough. In our opinion this interpretation would be too strict, especially in view of the right to be presumed innocent, laid down in Article 6(2) of the Convention, which implies that reasonable doubt and clear innocence should lead to the same result".

(6)

It is, in my opinion, an objection to the Secretary of State's argument that courts of appeal, although well used to deciding whether convictions are safe, or whether reasonable doubts exist about the safety of a conviction, are not called upon to decide whether a defendant is innocent and in practice very rarely do so.

I have set out Lord Bingham’s reasoning fully because, as I have said, Mr Owen submits that there was a miscarriage of justice in this case if Lord Bingham’s interpretation is applied. He accepts that the appeal must fail on Lord Steyn’s interpretation.

In an equally detailed and closely reasoned speech, Lord Steyn concluded that the Secretary of State’s submission was well-founded. He analysed a number of decisions of the ECtHR and held at [44] that article 6(2) of the European Convention on Human Rights was not relevant: article 14(6) (and therefore section 133) are in the category of lex specialis and the general presumption of innocence does not have any impact on it.

He then considered the text of article 14(6) and the travaux preparatoires at [45] to [54]. Finally, he arrived at what he described as a “workable interpretation” and concluded:

“56.

I conclude that the autonomous meaning of the words "a miscarriage of justice" extends only to "clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent" as it is put in the Explanatory Report. This is the international meaning which Parliament adopted when it enacted section 133 of the 1988 Act.

57.

Mr Mullen can certainly say that he was a victim of a failure of the trial process inasmuch as the circumstances in which he was deported from Zimbabwe were deliberately concealed from him before and at his trial. If it had been disclosed the trial would have been stopped. But Mr Mullen was not innocent of the charge. On the contrary, the conclusion is inescapable that he knowingly lent assistance to an active IRA unit. He is therefore not entitled to compensation under section 133.”

Thus it will be seen that Lord Steyn reached a clear conclusion as to the meaning of “miscarriage of justice” and Lord Bingham suggested a wider interpretation (but without reaching any final conclusion on the point). Lord Scott said that it was not necessary to express a concluded view on the issue. Lord Rodger, agreed that the appeal could be decided on the basis put forward by Lord Bingham with which he agreed, but also said that, whilst it was not necessary to go further for the decision of the appeal, he also accepted the arguments advanced by Lord Steyn. Lord Walker said that Lord Steyn had set out “powerful” reasons for his conclusion on the meaning of “miscarriage of justice”, but would go no further than the limited ground for allowing the appeal identified by Lord Bingham.

In view of the way in which Mr Owen puts his case, I shall for the most part refer to the subsequent authorities only in so far as they discuss Lord Bingham’s interpretation. In the subsequent case of R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), the Divisional Court (Lord Phillips CJ andGriffith Williams J) dismissed an application for judicial review of a decision by the Secretary of State not to grant compensation. The defendant had been convicted of various sexual offences. The new or newly discovered facts relied on comprised fresh evidence which emerged after the defendant’s conviction casting doubt on the credibility of the complainant and on the basis of which the CACD quashed the convictions. It was argued on behalf of the claimant that Lord Bingham’s test was satisfied. That was because it was unlikely that he would have been convicted if the complainant’s propensity to tell lies had been known at the trial, and for that reason he should not have been convicted.

The Divisional Court rejected this submission. Lord Phillips said that Lord Bingham had considered two situations. The first was where the new facts demonstrated that the claimant was innocent (a category 1 case). The second was “where there were acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was “wrongly convicted”. In such circumstances it is appropriate to say that the claimant should not have been convicted”. This is what I have characterised as a category 4 case.

Lord Phillips said that the claimant was not able to bring himself within either of Lord Bingham’s two categories. The most that could be said was that if the jury had had advance notice of the lies that the complainant told after the trial, they might not have convicted him. It was a matter of speculation whether such knowledge would have resulted in a different verdict. Nothing went wrong in the investigation of the offence or the conduct of the trial, let alone seriously wrong. All that occurred was that the complainant’s conduct after the trial raised doubts about her credibility. Lord Bingham’s second category of miscarriage of justice was not satisfied. It was not, therefore, necessary to choose between the interpretations of Lord Bingham and Lord Steyn.

The next case is re Boyle [2007] NIQB 88. A conviction had relied on admissions which police officers said had been recorded contemporaneously in notes of interviews. ESDA testing (post trial) revealed that there had been another version of the notes. In quashing the conviction, the Court of Appeal stated that they could not say that the trial judge would necessarily have reached the same conclusion if the new facts had been before him. In other words, it was a category 3 case.

Weatherup J dismissed a judicial review challenge to the refusal by the Secretary of State for Northern Ireland to award compensation under section 133 of the 1988 Act. In particular, he rejected the submission that the claimant was entitled to compensation on the basis of Lord Bingham’s interpretation. At para 25, he said:

“In the present case, the Applicant contends that there has been a failure in the trial process. On Lord Bingham’s approach a ‘miscarriage of justice’ arises not only where it has been demonstrated that the Applicant is innocent, which is not the present case, but also where the Applicant should not have been convicted. However the new or newly discovered facts referred to above do not establish that the Applicant ‘should not’ have been convicted. As Carswell LCJ stated in quashing the Applicant’s conviction…the new or newly discovered facts rendered the conviction unsafe because the Court of Appeal could not determine what view the trial judge would have taken of the evidence had he known that it appeared that there were two versions of the interview notes for interview five. The trial Judge might have taken the view that it had fatally undermined the credibility of the interviewers and removed the evidence from the area of proof beyond reasonable doubt to some lesser area, or he might have said that he nevertheless accepted that the evidence was reliable in substance and that the interviewers reflected what was said. All that can be said is that the trial Judge may or may not have convicted the Appellant had he known what is now known. Accordingly as in Magee’s Application and in Clibery, the Applicant does not satisfy Lord Bingham’s wider interpretation of ‘miscarriage of justice’ as an Applicant in respect of whom it has been established that he ‘should not’ have been convicted.”

In R (Allen, formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] All ER 1, the claimant had been convicted of manslaughter. Her appeal against conviction was allowed by the CACD on the grounds of fresh medical evidence which rendered the conviction unsafe: the evidence which was now available might, if it had been heard by the jury, have led to a different result. The claimant’s application for compensation under section 133 was refused by the Secretary of State. Her claim for judicial review was rejected by Mitting J. She appealed to this court.

The leading judgment was given by Hughes LJ (with whom May LJ and Potter P agreed). It was accepted on behalf of the claimant that her innocence had not been demonstrated beyond reasonable doubt by the decision of the CACD. Accordingly, if Lord Steyn’s interpretation of “miscarriage of justice” was correct, her claim must fail. It was submitted that Lord Bingham’s interpretation was to be preferred and that, on that interpretation, the claimant should succeed because something went seriously wrong with the trial process: see [23]. It could now be seen that the expert evidence at trial was flawed, not because it was other than conscientious and experienced, but because of advances in medical thinking.

At [24] to [26], Hughes LJ analysed Lord Bingham’s interpretation of section 133. He said of what Lord Bingham said at [9(1)] that “at its highest that may mean that Lord Bingham contemplated that “miscarriage of justice” might include such failings of the trial process as those which he used as examples of “wrongful conviction” in the earlier para [4]”. At [26], he said:

“Whatever arguments may exist about the interrelation of Lord Bingham’s paras [4] and [9], it is plain that the critical feature of the extended interpretation of “miscarriage of justice” which he was prepared to contemplate is that “something has gone seriously wrong in....the conduct of the trial”....That is made the plainer by his references to a defendant who “should clearly not have been convicted” (at [4]) and “certainly not have been convicted” (at [9](1)) (my emphasis)”.

Hughes LJ concluded, therefore, that even on the interpretation of section 133 that Lord Bingham favoured, the claim could not succeed. At [32], he went on to deal with the submission that Clibery was wrongly decided. The basis for that submission was the argument that all cases where the conviction was quashed on basis of new or newly discovered facts were within section 133 except for cases like Mullen, where the appeal is allowed for reasons which are not connected with the guilt or innocence of the defendant.

Hughes LJ rejected the submission that, on Lord Bingham’s interpretation, the appeal should be allowed. Nothing had gone wrong with the conduct of the trial, whether seriously or otherwise. In speaking of “flawed expert evidence”, Lord Bingham could not have been contemplating evidence which was conscientiously given and based on sound expertise at the time of the trial [26]. Hughes LJ drew attention at [32] to Lord Bingham’s emphasis “that article 14(6) is directed to ensuring that defendants are fairly tried and to the need even on the extended meaning of miscarriage of justice for there to have been something go seriously wrong with the investigation or conduct of the trial”. He also rejected the submission that the reasoning in Clibery was flawed or that it had been wrongly decided.

At [33] to [36], Hughes LJ addressed and rejected an argument based on the presumption of innocence and article 6(2) of the European Convention on Human Rights. At [37] he said that it was therefore not necessary to resolve the difference of interpretation between Lord Bingham and Lord Steyn. Nevertheless, he went on to say why he preferred Lord Steyn’s interpretation. He adopted the reasons given by Lord Steyn and supplemented them with some of his own.

For completeness, I should briefly refer to R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin). This is a decision of the Divisional Court. It post-dates the decision of the Divisional Court which is the subject of the present appeal. It was not referred to in argument before us. The claim for compensation under section 133 was rejected by the Secretary of State. The new or newly discovered facts comprised material which had not been disclosed by the prosecution before or during the trial. Leveson LJ (with whom Sweeney J agreed) applied the second limb of Lord Bingham’s interpretation and said at [42] that he could not accept that “the failure to identify and disclose matters that could have been made available to challenge the credibility of RW demonstrates that there has been a serious failure akin to concealment or withholding of evidence such that “something has gone seriously wrong in the investigation of the offence or the conduct of the trial””. That conclusion was sufficient to dispose of the application for judicial review. Nevertheless, Leveson LJ, like Hughes LJ, went on to consider the true meaning of section 133 and preferred the reasoning of Lord Steyn to that of Lord Bingham.

Like the Divisional Court in Clibery and this court in Harris, Simon J did not consider it necessary to choose between Lord Bingham and Lord Steyn because he held that the claim failed even on Lord Bingham’s interpretation. At [38 (iii)], he said:

“Whichever of the two constructions is correct, the Claimant cannot bring himself within the broader construction of Lord Bingham since he can neither show that he was demonstrably innocent nor that he should clearly not have been convicted at the trial.”

As he said at [39], the CACD in the present case stated at [157] of its judgment that they were not to be taken as finding that, if there had been none of the failures which they identified, the claimant would inevitably have been acquitted.

Mr Owen wishes to argue, if this case goes to the Supreme Court, that Lord Bingham’s interpretation is to be preferred to that of Lord Steyn. He did not, however, develop any submissions in support of that case before us. He recognised that it was unlikely that this court would be persuaded to come to a different conclusion from that expressed by Lord Steyn and Hughes LJ (now further supported by Leveson LJ). In my judgment, it is not appropriate for this court to embark on a detailed consideration of the arguments, many of which are rehearsed in the speeches of Lords Bingham and Steyn and the judgment of Hughes LJ when those arguments have not been the subject of submissions in this court. Like Lord Phillips in Clibery and Richards J in Murphy, I do not propose to express a view about them.

It is accepted by Mr Owen that the claimant does not satisfy the first limb of Lord Bingham’s interpretation: the new or newly discovered facts do not show that the claimant was innocent. As for what the second limb means, I cannot improve on what Hughes LJ said at [26]: see [35] above. The comments of Lord Phillips at [25] of Clibery are to much the same effect. In my judgment, in re Boyle Weatherup J did not correctly apply Lord Bingham’s interpretation. Lord Bingham did not say that a miscarriage of justice occurs only if it can be said with certainty that, if the new facts had been deployed at the trial, the claimant would or should not have been convicted (a category 2 case). What Lord Bingham said was that a miscarriage of justice occurs where the claimant is wrongly convicted as a result of something having gone seriously wrong with the trial process.

Although what Lord Bingham said in [4] was directed to what constitutes a “wrongful conviction” (rather than a “miscarriage of justice”), it is clear that he intended that what he said in that paragraph should apply also to miscarriages of justice. In [9(1)], where he explained why he would hesitate to accept Lord Steyn’s interpretation, he saw a close analogy between the two. As he said “like “wrongful conviction”, “miscarriage of justice” can be used to describe the demonstrably innocent....But again like “wrongful conviction”, it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted....”.

The central question raised by this part of the appeal is whether the failure of the claimant’s legal representatives to consider and use the undeployed evidence comes within the scope of [4] of Lord Bingham’s speech. The failure by the legal representatives of a convicted person to conduct the trial competently is not one of the examples given by Lord Bingham of something going seriously wrong in the conduct of the trial resulting in the conviction of someone who should not have been convicted. I readily accept that this is not fatal to Mr Owen’s argument, since Lord Bingham himself said that it was impossible and unnecessary “to identify the manifold reasons why a defendant may be convicted when he should not have been”. But if he envisaged that incompetence on the part of the defendant’s counsel or solicitors was to be included, it is perhaps surprising that he did not mention it. Sadly, such incompetence is far from rare.

Mr Owen puts his case very broadly. He says that any failure on the part of a defendant’s legal representatives which leads to a conviction being quashed means that the defendant has not had a fair trial; and that of itself is sufficient to bring the case within the ambit of the second limb of Lord Bingham’s interpretation. He submits that it is a fundamental requirement of a criminal trial process that a defendant charged with a serious criminal offence is entitled to adequate legal representation. In this case, the appellant did not receive the minimum appropriate representation. Mr Owen has amplified these submissions in writing since the conclusion of the hearing of the appeal.

For the reasons that follow, in my judgment (i) the appellant did have a fair trial and (ii) even if the failure by his legal representatives to discover and use the undeployed evidence resulted in his not having a fair trial, that did not result in a miscarriage of justice according to Lord Bingham’s interpretation.

Mr Owen puts his case that the appellant did not have a fair trial in two ways. First, he submits that there was a breach of article 6(3)(c) of the European Convention on Human Rights (“ECHR”). Secondly, he submits that the appellant did not have a fair trial at common law.

I shall start with article 6(3) which sets out a number of “minimum rights” including the right:

“(c)

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

In Artico v Italy (App no 6694/74) the ECtHR said at [33] that article 6(3)(c) guarantees the right to an adequate defence either in person or through a lawyer. They said: “The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. Mere nomination of a lawyer to represent a person facing a criminal charge is not enough because “it does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties”. But at [36] they went on to say: “Admittedly, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes……”

There are two reasons for this qualification. The first is the necessity for the independence of the legal profession and the professional relationship between lawyer and client, which constrain the ability of the State to interfere with the way in which legal representatives discharge their professional duties. The second is that ECHR obligations are owed by the State and its organs, and not by private individuals. The shortcomings of an independent lawyer do not of themselves put the State in breach of its obligations unless and until they are “manifest” so that the State is put on notice of their existence and they are sufficiently grave to warrant the State’s intervention. I refer, for example, to Kamasinski v Austria (1991) 3 EHRR 36 at [65], Kahraman v Turkey (42104/02, 26 April 2007) at [35] and Kulikowski v Poland (18353/03, 19 May 2009) at [56].

In my judgment, there was no breach of article 6(3)(c) in the present case. The appellant was represented by two counsel at the trial, Mr Fordham QC (who had recently taken silk) and Mr Menary. The CACD found that Mr Fordham was an experienced criminal practitioner (para 45): he was a grade 4 prosecutor and on the SFO list at the time of the trial. The problem they faced was that they replaced previous counsel only 10 days before the trial date (previous counsel had to withdraw on account of a conflict of interest). One of the criticisms made of trial counsel was that they did not have sufficient time to prepare the case. At para 44, the CACD said that they accepted the evidence of Mr Menary that he and Mr Fordham felt that they had sufficient time to prepare the case. But the CACD said that there was no doubt that they were faced with a “formidable task” in making themselves ready for trial. The next criticism they considered was that before trial counsel were instructed, little or no pre-trial preparation had been carried out by solicitors or counsel previously instructed. The CACD rejected this criticism in part, but found at para 52 that no strategic planning or preparation had been carried out by counsel previously instructed. They then addressed the three areas of undeployed evidence to which I have already referred and expressed their broad conclusions at paras 155 to 157: see [8] above.

There is no doubt that there were shortcomings in the performance of trial counsel in this case and three of these led to the CACD quashing the conviction on the grounds that it was unsafe because, if the undeployed evidence had been used, it is possible that the jury would have acquitted the appellant. But I am not persuaded that failures on the part of counsel of the kind that occurred in this case meant that there was a breach of article 6(3)(c). The appellant was represented by experienced criminal counsel. They worked diligently to prepare the case during the 10 days between the time when they were instructed and the trial date. They appeared at court every day and represented the appellant in an apparently conscientious and competent manner. There is no question of their having been “prevented from acting”, or having “shirked” their duties. Nor is there any suggestion that they did not act in good faith in what they considered to be the best interests of their client. It is a question of degree whether the conduct of a defence is so inept that it can properly be said that the defendant has been deprived of “effective” assistance or that his right to representation has been “theoretical or illusory”. I do not consider that the fact that well-qualified and experienced counsel, apparently doing their best to represent their client effectively, make mistakes, even serious mistakes, ordinarily means that there has been a breach of article 6(3)(c).

There is the further point that none of the problems with the appellant’s representation (or the shortcomings of the appellant’s solicitors and counsel previously instructed) which led to the quashing of his conviction was “manifest” at the time of the trial or was brought to the attention of any of the competent authorities (including the court) at any time before the conclusion of the trial.

I turn to the position at common law. Mr Owen relies on the statement by Buxton LJ at [15] in R v Day [2003] EWCA Crim 1060:

“…in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial which themselves rendered the process unfair or unsafe.”

He also relies heavily on passages in the speech of Lord Carswell who delivered the judgment of the Privy Council in Bernard v State of Trinidad and Tobago [2007] 2 Cr App R 22. The question in that case was whether the appellant had been deprived of a fair trial in circumstances where counsel of 3 months’ standing appointed to defend him in a capital murder trial was too inexperienced and was denied an adjournment to enable him to take adequate instructions. At [27], Lord Carswell said:

“Their Lordships are quite satisfied that the matters which they have rehearsed constituted a significant departure from proper practice in the conduct of the trial. It is necessary, however, to consider them in the context of the trial as a whole and the strength of the case against the appellant. It does not inevitably follow that a conviction will be set aside on the ground of unfairness if there have been some errors in the conduct of the trial. It is a matter of degree, but factors which may affect one’s conclusion are the seriousness of the defects, bearing in mind the gravity of the charges faced by the defendant, and on the other hand the weight of the prosecution case against him. Lord Bingham of Cornhill expressed the principle in Randall v The Queen [2002] UKPC 19, [2002] 2 Cr App R 17 (p 267), [2002] 1 WLR 2237, para 28:

“While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

At [30], Lord Carswell applied the principles which he had earlier enunciated and said that the appellant “was deprived of the proper protection by the appointment of inexperienced counsel and the failure on the part of the court to afford him the necessary materials and opportunity to prepare himself properly”.

What I have said at [52] and [53] above in relation to article 6(3)(c) also leads me to conclude that the appellant was not deprived of a fair trial at common law. Adopting the language of Lord Bingham in Randall v R, the errors made by experienced counsel in this case were not so gross as to undermine the integrity of the trial. As Lord Carswell said, it is a matter of degree whether a conviction will be set aside on the ground of unfairness if there have been errors in the conduct of (and, I would add, in the preparation for) the trial. It is not surprising that on the facts in Bernard, the Privy Council quashed the conviction on the grounds that the appellant had not had a fair trial. But the facts here are very different. Counsel in this case were very experienced and no criticism is made of any court ruling or the conduct of the trial judge.

It is also important to bear in mind that the CACD in the present case did not quash the conviction on the ground that the appellant had not had a fair trial. It is clear from the passages cited at [8] above that the CACD did not consider that the verdict was unsafe because the appellant had not had a fair trial. The verdict was unsafe because the undeployed material was important and might have led the jury to acquit. It is true that the CACD referred to deficiencies in preparation, but the deficiencies explained why the material was not deployed: they were not in themselves the reason why the verdict was unsafe. The decision to quash the conviction was founded on the potential that the undeployed material had for affecting the jury’s verdict.

Accordingly, if it were necessary to decide whether there was a breach of article 6(3)(c) or the common law right to a fair trial, I would hold that there was no such breach in this case.

But even if the appellant was deprived of a fair trial, I do not consider that on the facts of this case there was a miscarriage of justice on an application of Lord Bingham’s interpretation. The essence of his interpretation is that something has gone “seriously wrong in the …conduct of the trial”. The non-exhaustive examples that he gives are cases where something has gone seriously wrong with the trial process so as to undermine its integrity. He includes no example of acts or omissions by a defendant’s legal representative. I accept, however, that there may be cases where the acts or omissions of a defendant’s legal representative which result in the quashing of a conviction are so egregious that a miscarriage of justice occurs within Lord Bingham’s interpretation. But the acts or omissions must be so serious that, looking at the case as a whole, it can fairly be said that the defendant has been deprived of effective representation. Examples might be: (i) where the legal representative fails to appear during part of the trial leaving the defendant to represent himself; (ii) where the legal representative fails to put the defence at all; and (iii) where the legal representative should have withdrawn from the case on account of a plain conflict of interest.

But for the reasons stated at [52] and [53], I do not consider that the errors of trial counsel identified by the CACD in this case caused something to go seriously wrong with the trial process. These errors were committed by experienced and apparently competent counsel acting conscientiously in good faith in the best interests of their client. It cannot fairly be said that the errors showed that the appellant was deprived of effective representation. Accordingly, on an application of Lord Bingham’s interpretation, there was no miscarriage of justice in this case.

For these reasons, I would dismiss the appeal.

I agree.

I also agree.