Judgment

Lord Justice Maurice Kay:

This is the judgment of the Court to which Lady Justice Sharp has made a substantial contribution.

Section 133, and the decision of the Supreme Court in Adams

“Section 133-Compensation for miscarriage of justice.

(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned 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 or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

[…]

(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of 2 years beginning with the date on which the conviction of the person concerned is reversed or he is pardoned.

[…]

(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

(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;…

[…]

(5A) But in a case where –

(a) a person’s conviction for an offence is quashed on an appeal out of time, and

(b) the person is to be subject to a retrial,

the conviction is not to be treated for the purposes of this section as “reversed” unless and until the person is acquitted of all the offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial. …

[…]”

“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.”

With great deference to Lord Phillips, we suggest that the following formulation [for category 2 cases], derived from those of Lord Clarke and Lord Kerr, carries an identical meaning to the test he formulated, but may be more readily useful to lawyers advising claimants and the Secretary of State:

“Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered?”

Reconsideration (Mr Dennis and Mr Tunbridge)

“Order, counterorder, disorder” is of the essence of good public administration. If the law is changed or suddenly discovered, it is right that it should be applied in its new form thereafter, but if it is to be applied retrospectively, this must be subject to some limitation. Quite what limitation should be applied would depend upon the particular circumstances. In the field of private law, retrospective action is controlled by the statute of limitations and the doctrine of laches. In the field of public law, it is controlled in the absence of any statutory provision by the exercise of the court’s discretion.”

Fresh applications (Mr Dennis and Mr Tunbridge)

Judicial review of the original decisions

The merits

Conclusion

Coda

Appendix

R (on the application of) v Secretary of State for Justice v Ali & Ors [2013] EWHC 72

(i) Ismail Ali

74. On 3 May 2007 before the Luton Crown Court, the claimant was convicted of assault occasioning actually bodily harm upon his wife. On 1 June 2007 he was sentenced to 12 months imprisonment. On 11 November 2008, his conviction was quashed by the CACD: see R v- Ismail Ali [2008] EWCA] Crim 2757.

75. The claimant applied for compensation under the 1988 Act on 1 May 2009 and the Secretary of State finally refused compensation in a letter dated 23 August 2011.

76. The charge against the claimant related to an offence on 28 July 2006. The claimant married his wife in February 2002. It was an arranged marriage and the couples' families were related. There were two children. By the summer of 2006, it was common ground that the marriage was not happy.

77. On 28 July 2006 there was a dispute between the parties after a visit to the family home from the claimant's cousin, who had arrived to teach Mrs Ali how to use a sewing machine. As soon as the cousin left, an argument broke out. The claimant admitted that he smashed the sewing machine onto the floor. The prosecution case was the claimant then assaulted his wife causing three cuts to her head, and that he had done so by grabbing her by the neck and dragging her into the kitchen, forcing her head to make contact with the kitchen sink. The defence case was that the claimant's injuries were self inflicted when he was not in the room.

78. In support of the Crown, Mrs Ali gave evidence through a video link. Her account was that having picked up the sewing machine and flung it to the ground, the Applicant starting swearing at her in Bengali saying she had ruined his life. After this he had grabbed her by the neck, forced her to the kitchen, pushed her to the sink and at that stage she lost consciousness and only woke up in hospital with cuts to her head. Her recollection of the events was very limited, but she adopted the contents of the police statement she had made as being accurate on the essential ingredients of the story. When she was cross-examined, she agreed that, within their culture, if a Muslim man threatened to divorce his wife, that would be very bad. She agreed that the claimant had mentioned divorce to her in the course of this row more than once. She agreed that if divorce was mentioned that would have greatly upset her. She agreed that by the time of the trial the parties were separated and that by then she wanted a divorce from the complainant. Mrs Ali denied going into the kitchen in the course of these events, taking a knife and holding it near to her stomach, which was the suggestion on behalf of the claimant. She denied that she had gone into the shed in the garden and picked up a hammer, or that she had bolted the kitchen door, or that the claimant had kicked the door in after she had locked it. She was insistent that the claimant had held her by the back of the neck and the hair and had hit her head against the sink. She accepted that there was no bruising and no marks on her neck or on any other part of her body.

79. It was agreed that the complainants' injuries had not been photographed and that there was no forensic evidence to show how the injuries were caused. There was some of the victim's blood on the claimant's clothing. When he came to give evidence he could not say how it came to be there. He suggested it was possible that the blood was transferred onto his clothing when he had tried to give mouth to mouth resuscitation to his wife.

80. There was no other direct witness to the central events. Neighbours gave evidence of hearing the noise of a heated argument or row. The claimant's brother in law lived next door. He had been out with his wife, the claimant's sister, and heard shouting when they returned home. They went into the kitchen of the claimant's house through the open back door and found Mrs Ali lying on the floor with blood coming from her head. The claimant was on the phone to the emergency services. His brother-in-law took over the call because the claimant was so agitated.

81. The claimant's evidence at trial was consistent with the cross-examination of his wife. In the course of the row he said he had threatened his wife with divorce and she became very upset. She picked up the knife and held it towards her own stomach. He remonstrated with her. She put down the knife and went outside to get a hammer. When she came back into the kitchen she bolted the door and was crying and shouting from the kitchen. The claimant was unable to open the door and get into the kitchen. He then went upstairs and saw the complainant lying beside the kitchen window with blood all over her. He then forced his way into the kitchen and called an ambulance. His brother-in-law and sister arrived and assisted him to get help. He denied attacking his wife and he could not explain the banging that one of the neighbours had heard. In the course of his police interview, the claimant agreed that his brother-in-law and sister had been of the view that he had caused his wife's injuries but he could not explain to them what had happened to the claimant because he did not see what had happened and because everyone had been upset.

82. It follows from these facts that the case turned very largely on the credibility of Mrs Begum.

83. The claimant's successful appeal was based on recordings of telephone conversations, after his conviction, said to be between himself and his wife. He himself gave evidence for the purpose of the appeal, describing the circumstances in which the telephone calls were recorded and how and when they were turned in to a transmissible record. A transcript was produced of those conversations. The conversations were interpreted. In anticipation of the CACD hearing, the Crown accepted that "the recordings, when viewed in the round, do contain admissions by the female speaker that false evidence has been given".

84. The force of this evidence depends on how firmly the female speaker can be identified as being the claimant's wife. That identification in turn depends on the evidence as to the provenance of the recordings and secondly on expert evidence comparing the recorded telephone conversations with admitted recordings of the voice of Mrs Ali.

85. The Crown made clear at the appeal that they had real concerns about the evidence, in particular as to the provenance of the recordings. The relevant passage from the Crown's skeleton argument reads as follows:

"6. The Crown does have reservations in this case which they have raised directly with the appellant.

7. The appellant provided an unsigned statement dated 29^th January 2008, indicating that the mobile phone upon which he had recorded "a" conversation had been given to Mrs Begum three week's earlier. The appellant stated that this was a Sony Ericcson Z610 with the number 07882 928827, service provider 3G.

8. In an unsigned and undated statement provided on 18^th April 2008, the appellant indicated that his wife would phone from a withheld number or from 079332 92449; a number she no longer has. The appellant indicated that before giving his wife his handset, he made a download onto a Sony Ericsson K800i of "certain" of these conversations.

9. In an unsigned statement dated 1^st July 2008, the appellant repeated his assertion that he had recorded the relevant conversation on this phone, which he had later given to Mrs Begum. The appellant gave a new number, which he stated he had used and indicated that his wife's number was a Pay As You Go number.

10. The appellant in an unsigned statement dated 30^th July 2008, referred to 11 calls made to Mrs Begum from number 07888 761091 and produced billing records for this new number. He indicated that during the 11 calls he made a recording on his Sony Ericcson 800i which is still in his possession. He has edited these recordings.

11. In short, the appellant has given conflicting accounts of numbers used, the number of phone calls made and the handsets upon which the recording was made. We have had no explanation for the conflict nor can confirm that there is no relevant material on the unedited recordings."

86. The Crown maintained their reservations in submissions to the CACD. The court acknowledged that position and expressed understanding of why the position was adopted. However, it was of course not part of the court's function to explore those reservations beyond establishing that the evidence was capable of belief. The judgment stated:

“… it has not been suggested that [the claimant's] description of the process by which he recorded those conversations and later transferred them into a digital form on a portable disk was inherently implausible or can be shown to be false. [Crown counsel] has also confirmed that the telephone on which those recordings are said to have been made is available and could be produced in evidence if necessary."

87. The CACD then turned to the other key issue, the identification of the voice on the telephone with the claimant's wife. The recordings had been submitted, on joint instructions from the claimant and the Crown, to an expert in forensic speaker comparison, Professor Peter French. He was assisted in his work by Dr Shahela Hamid, an academic linguist and speaker of Sylheti, the language of the recordings. Dr Hamid provided expert advice to Professor French on the variations on spoken Sylheti and helps to locate phonetic and acoustic features for detailed analysis. The critical difficulty for the experts was in obtaining acknowledged recordings of Mrs Begum of sufficient duration and quality to support the comparison.

88. Professor French's report is clear that:

"The technical quality of the telephone recording was fairly good for material of this kind. It contained an extensive sample of speech from the person in question."

He went on to say that:

"The reference recording, however, provided a poor basis for the comparison. Ms Begum alternated between speaking in Sylheti, Standard Bengali and English. Only the Sylheti material could be used in the analysis, as cross-language comparisons are not considered reliable. The Sylheti material amounted to some 1 minute and 8 seconds. The quality of the recording was poor. The signal to noise ratio was low. It was contaminated by extraneous noise and Ms Begum's speech was quiet owing to there being some distance between her and the microphone. Of the 1 minute and 8 seconds only 18 seconds was of sufficient quality to allow for basic acoustic testing. This is a very slender and restricted reference sample capable of supporting only a weak conclusion."

89. Efforts were made to see if an expanded and improved reference recording could be obtained, beyond that initially obtained by the police. However this effort failed for a number of reasons. Tapes of Mrs Begum's evidence at trial were of insufficient quality. Apparently Mrs Begum spoke very softly at trial, and as we have noted above, she gave evidence by video link. As the Crown acknowledged in the course of their skeleton argument, the officer in the case had been unable to locate Mrs Begum despite persistent attempts to do so. The skeleton argument went on:

"The Crown concedes that the court would be entitled to infer that Mrs Begum is avoiding contact."

The experts were thus left to interpret the material they had without any improvement.

90. Professor French's report sets out his methodology as one potentially involving two decisions, the first being consistency and the second distinctiveness. His conclusion as regards consistency was as follows:

"In terms of the restricted set of features present in the reference sample for comparison I have found no differences between the recordings of a kind that would cause me to argue that the women in the telephone call is not Ripa Begum. On the contrary, the voice and speech patterns are consistent with those of Ms Begum in all available significant phonetic, acoustic and linguistic respects."

91. As to distinctiveness, Professor French described the range of conclusions available to an expert from "not distinctive" on a 5 point scale through to "exceptionally distinctive". However, his conclusion on this was:

"In the present case, owing to the lack of published information concerning prevailing norms of pronunciation and prosody for Sylheti, coupled with the limited nature of the reference material, I would not consider it reliable to evaluate the distinctiveness of the features common to the samples."

92. Professor French went on to make two additional points:

"(i) Although it was not part of my instructions in this case, I nevertheless thought it might be helpful to the court if Dr Hamid and I were to sample the conversation at various points for any evidence of play-acting. The reasoning behind this was that, if the speaker was not Ripa Begum, it would have to be an impostor acting out her part for the purposes of manufacturing evidence. The dialogue has all the hallmarks of naturally-occurring conversation – namely, hesitations, interruptions (of self and other), false starts, repetitions and overlapping speech.

(ii) It might also be of relevance in assessing whether the conversations were play-acted for the court to take into account that the conversation Dr Hamid and I examined was 37 minutes in duration. The total duration of the calls is over 3 hours. The court might wish to consider whether it would be feasible for someone to play-act for this length of time."

93. The CACD dealt with the impact of Professor French's evidence in paragraphs 17 to 23 of the judgment. After summarising the state of the evidence their conclusions were as follows:

"22. … [E]ven allowing for the unsatisfactory aspects of the applicant's account, what we have here are recordings of statements made by a woman purporting to be the complainant, in a dialect of Bengali known to be used by the complainant, a voice whose speech characteristics are consistent with those of the complainant, who, moreover, appears to have been engaged in normal conversation in the course of which she discussed (sic) with apparent familiarity the circumstances in which she suffered injury and admits that the injuries were self-inflicted.

23. In our view, the applicant's evidence that the recordings are a true record of conversations between himself and the complainant is capable of belief, and, if believed, would significantly undermine the evidence given by the complainant against him. That, in our view, is sufficient to render the applicant's conviction unsafe. We therefore give leave to appeal and quash the conviction."

94. Following the claim for compensation those acting for the Secretary of State requested a full report of the background from the Crown Prosecution Service. This was provided in early September 2009 and has been disclosed to us. It was not before the CACD. This report reveals that in anticipation of the appeal, the Criminal Appeal Office had allowed the prosecution time to take a further statement from Mrs Begum and to secure the recording of her voice to be used by the expert. Even at that stage, there appears to have been some difficulty in locating Mrs Begum. However, in a statement that was taken from her dated 3 March 2008:

"She confirmed it was not her voice on the recording produced by the Applicant."

The report confirmed that the police were unable subsequently to locate Mrs Begum but that, had she been available to give evidence, her attendance before the CACD would have been requested. The report emphasised that the Crown flagged up to the court the conflicting accounts as to the provenance of the telephone recordings coming from the claimant. The report then stated:

"The Crown acknowledged that Ripa Begum was the key witness and her credibility was the key issue at trial. As she could not be located then, notwithstanding the manner in which the recordings were made, the Crown conceded that it was in difficulty resisting Mr Ali's appeal. The Crown conceded that the court would be able to infer that Ripa Begum was avoiding contact. …….The Crown was not in a position to and did not accept that Ripa Begum was the female who was recorded in conversation with Mr Ali as she had provided a statement to the police in March 2008 denying that it was her voice on the recording."

95. The Crown never conceded that the evidence given at trial was untrue. After the decision of the CACD no charges were brought against Mrs Begum. She could not in any event be contacted but there was never a request to investigate whether she had given false evidence and such an investigation was not mounted. On this issue the report went on as follows:

"It was by no means certain that Ripa Begum's original account was not true or indeed that she was the female participant in the recorded conversations. Furthermore, the Court of Appeal made no such recommendation. [to mount an investigation] No action, therefore, was ever taken in respect of the allegations raised by Mr Ali in his appeal."

96. The claimant's claim was first rejected in a letter dated 23 November 2009. At that stage the Secretary of State considered the narrower test formulated in Mullen's case and concluded that "the new evidence does not demonstrate beyond reasonable doubt that your client is clearly innocent".

97. Following the promulgation of the decision in the Adams cases, in May 2011, the Secretary of State reconsidered the claim and again rejected it. The second decision is contained in a letter dated 23 August 2011, the relevant parts of this letter read as follows:

"Your client's case does not fall within the circumstances identified by the Court. There is no indication in the Court's judgment that the new fact demonstrated that there was insufficient evidence upon which the court could convict. There remained questions about the recordings. Professor French was only capable of "supporting a weak conclusion" that the recordings were of conversations with the complainant (paragraph 20). The Court also referred to the "unsatisfactory aspects of the applicant's account" of the circumstances in which the conversations were said to have taken place (paragraph 22). The Court of Appeal merely found that the new evidence was "capable of belief" and "if believed, would significantly undermine the evidence". In addition, there remained other evidence, including the complainant's physical injuries, the blood on the applicant's clothing and the unexplained three loud bangs heard by one of the neighbours.

Therefore it is quite possible that a jury might still have found your client guilty even if presented with the new evidence of the telephone recordings."

98. This claimant had sought permission to apply for judicial review in the light of the first refusal by the Secretary of State. Whilst of course that application was in effect rendered redundant by the subsequent decision of the Secretary of State in August 2011, it is worth noting the terms in which Treacy J refused permission on paper on 20 May 2010. He concluded that this case fell into Category 3 as identified by Dyson LJ in the Court of Appeal in Adams's case ( [2009] EWCA Civ 1291 at [19]), and for that reason would not satisfy the test as adumbrated by either Lord Steyn or Lord Bingham in Mullen's case.

(ii) Kevin Dennis

101. On 18 December 2000, this claimant was convicted of the murder of Babatunde Oba on 29 December 1999. Mr Oba was stabbed to death at the Broadway Boulevard Club in Ealing in the early hours of the morning. He was stabbed 10 times in the course of a brawl. The prosecution evidence included expert evidence that two different knives had been used to stab him. This claimant was present with his brother Desmond Dennis, his cousin Carl Dennis and another man named Stefan Williams. All four were tried and convicted, not merely of murder but of violent disorder. The murder conviction was based on the Crown's allegation that all four were part of a joint enterprise to kill or cause grievous bodily harm to Mr Oba.

102. Part of the evidence against this claimant at his first trial came from an expert witness Michael Harrow, who interpreted the CCTV images taken at the time. One of these images showed Stefan Williams with an object in his hand. Although Williams began by denying that he had anything in his hand during the fight, by the conclusion of the trial Williams admitted that he had an object in his hand, although denied that it was or could have been a knife. Michael Harrow's evidence was that the object probably was a knife. This evidence was important to the Crown's case since there was no other evidence that the group of which the claimant formed a part were carrying a knife or knives. There was clear evidence that, just after the fatal stabbing and when the group had been ejected from the club, one of the group called out "get the gun, get the gun" and soon after, the claimant's cousin Carl Dennis came back to the club door and fired a gun in the air and otherwise behaved in a threatening manner.

103. The jury convicted Williams unanimously and the others by a majority.

104. In the course of the first trial, at the close of the prosecution case, a submission of no case to answer on the charge of murder had been made on behalf of Kevin, Carl and Desmond Dennis. The trial judge HHJ Roberts QC identified the fundamental question which this submission raised in the following way:

"The short but difficult question which I have had to consider is whether, on the evidence before the jury, they would be entitled to infer, as against any of the three defendants on whose behalf submissions have been made, that that defendant knew of the existence of a knife in the possession of one of his colleagues and realised that that knife might be used in the course of the attack with the intention of causing death or really serious injury."

105. After some hesitation, the Judge concluded that there was such a case. His principal reason for that conclusion was the evidence of Dr Patel that two knives of different widths were used to inflict the wounds. He considered that it "would be open to the jury to draw the inference which the Crown seek to draw from the basic facts which the Crown had proved; in other words, to draw the inference this was indeed a group of men "tooled up" and ready for action".

106. By a letter dated 11 November 2001, the claimant submitted grounds of appeal against conviction settled by himself. The essence of these grounds was to suggest the evidence was not capable of sustaining the conclusion that he had the necessary foresight for guilt as a secondary party to murder, on the basis of joint enterprise. On 12 February 2002 Andrew Smith J gave leave to appeal on the single ground that it was arguable the trial judge had wrongly rejected the submission of no case to answer. Provisional grounds of appeal adopting that point were settled by leading counsel on 10 October 2002. The provisional grounds of appeal against conviction settled by counsel make no reference to the evidence of Michael Harrow. That point was not then being taken.

107. This claimant's co-defendants Carl Dennis, Desmond Dennis and Stefan Williams also appealed. The appeal first came before the CACD in June 2003. The Crown indicated concern about the evidence of Michael Harrow, but full details were not then available. The appeal next came before the CACD on 26 March 2004. By then, there were a number of decisions in which the CACD had quashed convictions because of the unreliability of the evidence of Mr Harrow. In the claimant's appeal, the Crown immediately conceded that, had they known what was by now known about Mr Harrow, they would not have called him as an expert. They had obtained fresh expert evidence as to the CCTV images and they accepted on the basis of that evidence that the imagery was not good enough to say whether or not Stefan Williams was holding a knife. It was following that concession, that the CACD reviewed the safety of the conviction.

108. The court focused on the evidence which was said to show that this claimant and his companions were operating as a group. The court noted the evidence as to a gun and as to threatening behaviour after the group were ejected from the club. The four appellants had arrived as part of a group of between five and seven people in two cars and appeared to have left at the same time. The court considered some of the evidence at trial, to the effect that one of the doormen had recognised one of the attackers as not being one of the group comprised by these appellants, but coming from another group who had entered the club from a different entrance. This was a group of men with Jamaican accents and who were referred to at trial as the "Rizla" group. The court noted that the Crown had pointed out some of the inconsistencies in that body of evidence and also noted the Crown's submission as to the improbability of two discrete groups having joined in the attack on the deceased. Against that backcloth, the court considered whether the convictions for murder were unsafe.

109. In concluding that the convictions were unsafe, the court laid considerable emphasis on the evidence of Mr Harrow. As we have noted above, his was the only evidence which showed directly that one of those in the appellant's group had a knife. That evidence had to be seen in the context that the appellant Williams had denied in interview that he had anything in his hand, but subsequently accepted that he must have had something, which he suggested might be various objects such as keys, a key ring, a pen or a torch. The image in question was taken very shortly after the stabbing of the deceased. The court observed that the conjunction of the evidence from Mr Harrow, alongside "the improbability of [the object] being that which Williams suggested, must, we think, have weighed in the jury's mind". For that reason, and with specific reference to the conclusions of the trial judge and his observations of concern in rejecting the submission of no case to answer, the CACD concluded the convictions must be set aside.

110. There followed a full argument as to whether or not it was proper to order a retrial. Counsel for the appellants argued that, without the evidence of Mr Harrow, there was no longer a prima facie case against the defendants. The Crown replied suggesting that the representations made on behalf of the appellants "leave out time and time again the dynamics of the group". The Crown relied on the conclusions of the trial judge and the convictions for violent disorder on count 2, the latter being unchallenged and establishing the joint enterprise between the appellants to attack Mr Oba "…..and, there, the only other element the Crown need to prove is the knowledge of the weapons". It was submitted that the evidence from the medical expert, to the effect that there were two knives used by the group attacking the deceased, together with the evidence of the behaviour of the group immediately following the fatal attack, meant there was enough to go to a jury even in the absence of the evidence of Mr Harrow.

111. The CACD ordered a retrial. They did so in the following terms:

"57. We do not consider that it is for us now to decide that there is no case to answer, because we are satisfied that on an analysis of the evidence before us on paper, there is sufficient for us to order a retrial, taking into the account the circumstances, particularly the age of the case, to which we have referred. We have already observed that the Crown must, within a period we shall hear counsel on, set out the evidence upon which it is now able to rely. We have also taken into account that in this case, as is apparent from the ruling of the learned judge, much will depend upon the trial judge's assessment of the quality of the identification evidence.

58. In those circumstances we consider that the just and proper course is to order a retrial, but wish to make it clear that first of all rearraignment must take place within as short a time as possible. We will hear counsel on that in a moment. Secondly that the Crown must provide a new outline of its case, together with the evidence that it is now able to call in support of it in the near future. As Mr Leonard, on behalf of the Crown, has very properly acknowledged, the Crown will keep under careful review, in the light of the evidence that it knows it is able to call, its duties in respect to the prosecution of this case. We would also wish this matter to be heard as soon as possible.

59. In saying what we have said, it will obviously be for those representing the defendants at any appropriate stage, when Crown's case becomes clear, to make any applications they consider right. But on our analysis of the evidence, we consider that, on what we have been told, and what we see, there is sufficient evidence in which it would be just and in the interest of justice that there should be a full retrial on count 1."

112. The claimant's retrial commenced in early 2005 at the Central Criminal Court. Shortly before the close of the prosecution case, when the only evidence outstanding was formal evidence, the second trial judge, HHJ Scott-Gall QC, heard fully argued submissions of no case to answer. He had already made a number of rulings on the admissibility of evidence, which meant that the body of evidence available for the second jury was a little more restricted than that which had been available to the jury at the first trial. Principally, the judge had ruled that the behaviour of the group outside the nightclub, and therefore just after the fatal stabbing, was inadmissible. He thus took a different view, to a limited extent, than the view taken by HHJ Roberts QC at the first trial.

113. In considering the submissions made to him, HHJ Scott-Gall QC made explicit reference both to the ruling in the first trial and to the judgment of the CACD. Early in his conclusions he said this:

"The Court of Appeal never addressed their mind to the secondary point as to whether in fact putting aside the evidence or the non-evidence of the possession of a knife [by] Williams, whether there was a case to answer in respect of the other three. It was left very much to be sorted out in the retrial … and no one disputes it is fair that there was a sufficient case for the court to order a retrial."

114. The Judge went on to observe that the Crown had by then conceded there was no evidence against any defendant as to who held a knife, or a second knife, or as to who struck any blow, let alone the fatal blows. The attack had not been pre-planned and the genesis of 'a plan', "if a plan there was as opposed to loutish behaviour, was formed in seconds in the dance floor incident". The Judge concluded that the quality of identification evidence was such that a jury properly directed could rely on it. There was adequate evidence of a joint enterprise attack on Mr Oba involving Desmond Dennis, Kevin Dennis and Stefan Williams.

115. The Judge noted the evidence of the witness Kilibarda. Kilibarda identified Kevin Dennis as being involved in the fight but not as the stabber. Kilibarda had given a description of the stabber which was not consistent with the appearance of Kevin Dennis. Given the evidence concerning the other group of men – the "Rizla group" - the jury could make no proper conclusion that the stabber was either Kevin Williams, or another member of his group. For those reasons, on 9 March 2005 the judge acceded to the submissions of no case to answer and directed the jury to acquit of murder.

116. On 9 March 2005 following the judge's ruling, this claimant was discharged by the jury. It should be noted that his conviction for violent disorder remains. He made an application for compensation on 6 October 2008, some three and a half years after his conviction was quashed. The claim was rejected in a letter from the defendant dated 7 April 2009. The Secretary of State accepted that, for the purposes of section 133(1) the claimant's conviction was quashed on the grounds of new or newly discovered facts. However, he did not accept that it was quashed on the grounds that those facts showed beyond reasonable doubt there had been a miscarriage of justice. The letter recited the range of authorities extant at that time and concluded that applying the proper approach the claimant was not "clearly innocent". In that context, the Secretary of State relied on the order for a retrial.

117. The claimant's solicitors had raised the fact that the claimant's brother Desmond Dennis had received compensation under section 133. The Secretary of State responded to this by saying he was entitled to approach cases in the light of legal advice taking into account developing jurisprudence. The implication was that the authorities upon which advice was given had become more unfavourable to claims over the relevant years.

118. On 10 June 2011, within a month of judgment in the Adams cases being handed down, the claimant's solicitors wrote asking the Secretary of State to reconsider the claim:

"… since the case of Adams was handed down by the Supreme Court … the situation has changed … in our view the judicial interpretation of section 133 of the Act is now such that Mr Dennis clearly satisfies the requirements."

On 21 October 2011 the Secretary of State replied, refusing to do so.

119. The Secretary of State pointed out that, following the earlier refusal in April 2009, the claimant's solicitors had sent a letter for action but had not brought judicial review proceedings. The time limit for judicial review of that decision was long expired. It was said that the Act did not provide for a second or subsequent application for compensation, and the Secretary of State simply declined to reconsider the case. The claimant's solicitors responded with a pre-action protocol letter on 17 November. This met with a response dated 1 December in which the Secretary of State suggested that the claimant's case did not fulfil the requisite statutory test even as explained in Adams. It was stated that there was no new or newly discovered fact which had arisen after the decision in April 2009. The response repeated the contention that if the claimant considered the original refusal was wrong he should have challenged with judicial review proceedings at the time. Thereafter, the claimant issued proceedings and became part of the group litigation.

120. In the course of the case, the Secretary of State filed a witness statement, dated 13 July 2012, from Sophie Langdale, Deputy Director (Judicial Policy and Criminal Trials) at the Department of Justice. Ms Langdale is the official responsible for running the team advising the Secretary of State on applications for compensation for miscarriages of justice. The witness statement sets out some practical matters relevant to the question of reopening old cases. It is not necessary for us to rehearse that material here since these considerations chime closely with the legal policy we have summarised at [50] above and deal with in more detail when considering the case of Mr Tunbridge at [208] ff. below. However, in her witness statement Ms Langdale assessed whether this claimant could satisfy the relevant test under the approach set out in the Adams cases:

"… if the claimant's application were to be reconsidered."

121. Ms Langdale then analysed this claimant's case. She concluded that it would not fulfil the test in the Adams cases…

122. Ms Langdale concluded that the new fact relating to the unreliability of Mr Harrow's evidence did not undermine the other evidence which remained against the claimant:

"to the extent that no jury could possibly convict the claimant of the offence of murder with which he was originally charged."

123. Her witness statement is clear about one aspect of her approach:

"In reaching this view, I have not applied technical rules of evidence of the type that were applied by the trial judge at the retrial which clearly could have affected his decision in concluding there was an insufficient case to answer."

124. Ms Langdale noted that the CACD ordered a retrial. She noted that Judge Scott-Gall QC concluded that there was no case to answer at the end of the Prosecution case in the retrial:

"but that was not based upon any new or newly discovered evidence not known to the Court of Appeal."

She went on to say:

"I also note that the judge at the retrial concluded that there was evidence on which a jury properly directed could be sure on the evidence, if they so decided, that the claimant was implicated in the attack on Mr Oba and I have already referred to the fact that the claimant's conviction for violent affray remained."

125. In a central passage, Ms Langdale stated:

"I also note that there was evidence that after the group of which the claimant was part were ejected from the club, one member called out "get the gun, get the gun" and Karl Dennis returned to the club with a firearm which was fired in the air. Karl Dennis and Mr Mehta were convicted of possession of a firearm with intent to endanger life in respect of this incident. It seems to me that this evidence taken with the other remaining evidence was potentially capable of resulting in a conviction of the claimant for murder, notwithstanding that the trial judge himself concluded that that evidence should not be led before the jury at the retrial."

…

(iii) Justin Tunbridge

188. On 5 September 1995, after a trial before HHJ Viscount Colville of Culross and a jury at Snaresbrook Crown Court, the claimant was convicted of two counts of indecent assault by a majority of 10:2. On 6 October 1995, he was sentenced to 9 months imprisonment on each count to run concurrently. On 21 December 1995, the claimant was refused leave to appeal his conviction by the single judge. Subsequently, his case was investigated by the Criminal Cases Review Commission and, on 8 February 2007, the case was referred to the CACD by the CCRC. On 17 April 2008, his convictions were quashed by the CACD, see: R –v- Tunbridge [2008] EWCA Crim 949.

189. The allegations behind these convictions can be summarised as follows. The complainant KK was a friend of the claimant's then girlfriend Ms B. The allegation was of a series of indecent assaults by the claimant in Ms B's flat while she was asleep in the bedroom and the complainant and the claimant were together in the living room. The complainant alleged that the claimant had touched her breasts, tried to put his penis in her mouth and masturbated and ejaculated onto her face and top. The defence account was that the claimant never touched KK's breasts, and the jury acquitted him in relation to that allegation, which formed count 1 of the indictment. The claimant's account as to counts 2 and 3 was that KK had made sexual advances to him, that they kissed and that KK masturbated him, so that he ejaculated on her arm. His account to the jury was not merely that this was consensual sexual contact, but that KK had taken the initiative.

190. The circumstances giving rise to the reference to the CACD were helpfully summarised in the judgment: see [2008] EWCA Crim 949 at [7] – [14]. In the early 1990s, the claimant was working in Tenerife. Whilst working there he was friendly with a Miss G, who was in turn a good friend of his cousin. After about two years Miss G returned to the United Kingdom from Tenerife and started to work in a casino. Between about 1996 and 1998 she worked there at the same time as KK and they became friendly. In 1997, KK and Miss G decided to go together to Ascot. KK stayed the night before at Miss G's house. During the course of that evening KK saw a photograph taken in Tenerife in which both Miss G and the claimant were shown. KK asked Miss G what she thought about the claimant. As the CACD summarised it:

"Miss G, according to her evidence, said that she thought he was a "bit flash". The complainant then said that she had brought the Appellant down a peg, he was no longer so flash; she had lied about the matter in court and that had brought an end to, by implication, his cockiness. According to Miss G, the complainant seemed to be almost bragging about it. Miss G's evidence was that that affected her view of the complainant. Thereafter, although they remained, as she described it, friends, they did not see each other so often."

191. Miss G took no active steps about this alleged admission of perjury. She told the CACD when giving evidence to that Court that she did not really know what to do with the information. She did not obtain any advice from anyone or take any action. Then, by chance, she met the claimant in the summer of 2004. They recognised each other, exchanged telephone numbers, and subsequently met for coffee. During the course of that casual conversation they talked of mutual acquaintances. Miss G's evidence was that the claimant seemed to her to have changed significantly and she asked him about that. He told her that going to prison for something he had not done had had a substantial effect on him. This led to Miss G informing the claimant what she knew of the matter. This eventually led to the case being investigated by the CCRC.

192. KK was investigated by the police as part of that referral. The CACD had available the transcripts of her interviews. In interview, KK rejected the suggestion she had lied. She also rejected the suggestion that she had confessed to lying to Miss G. Other matters emerged in the course of the investigation which might have been used to the discredit of KK had the CACD decided to order a retrial of her allegations.

193. In the course of the hearing before the CACD, Miss G gave evidence as to what the complainant KK had said about the whole affair. When considering whether the evidence of Miss G should be admitted under section 23 of the Criminal Appeals Act 1968, the Court said this:

"15. We have unhesitatingly come to the conclusion that Miss G's evidence is capable of belief. It would have been admissible. Had that statement been made to Miss G before the trial, it could have been put before the jury and it would clearly have been capable of having had an effect on the verdict. The question is, ultimately, accordingly, whether these verdicts were safe bearing in mind our views about the evidence of Miss G

16. …

17. We have unhesitatingly come to the conclusion that it was evidence which could well have affected the verdicts that the jury brought in. It seems to us therefore, in relation to both ways in which we have to test fresh evidence such as this, the evidence is such as to lead to the conclusion that these verdicts were unsafe, and, whatever may be the truth of the matter in relation to the events in 1995, we must accordingly quash these convictions." …

195. The claimant made an application for compensation pursuant to section 133 on 29 May 2008. This application was refused, the decision being communicated in a letter dated 17 October 2008. The relevant passages from this letter read as follows:

"Section 133(1) provides that compensation shall be paid where a 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 …unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted." Section 133(5) of the Act defines 'reversed' in this context as including a conviction having been quashed following a reference to the Court of Appeal by the Criminal Cases Review Commission.

The Justice Secretary has considered your client's application under the provisions of the Act. The conviction was quashed following a reference from the CCRC and has therefore been "reversed" for these purposes.

The Justice Secretary accepts that, for the purposes of section 133(1), your client's conviction was quashed on the ground of new or newly discovered facts. However, he does not accept that it was quashed on the ground that those facts "showed beyond reasonable doubt that there had been a miscarriage of justice". All that can be said is that the jury may or may not have convicted your client had the new evidence been available to them at the original trial. The cases of R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18 , R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin) , Re Boyle [2007] NIQB 88 , and R v (Allen, formerly Harris) v Secretary of State for Justice [2008] EWHC Civ 808 have been considered in this context."

196. On 15 January 2009, the claimant issued an application for permission to bring judicial review proceedings challenging this decision. He was refused permission on the papers by HHJ Waksman QC on 24 March 2009 and again refused permission by Blair J after an oral hearing on 9 June 2009.

197. Following the promulgation of the decision in the Adams cases the claimant invited the Secretary of State to reconsider his application in a letter of 17 June 2011. In a letter dated 21 October 2011, the Secretary of State declined to reconsider the claimant's case. The material part of the letter read as follows:

"Your client has already made an application for such compensation, which was refused by the Justice Secretary on 17 October 2008. Section 133 of the 1988 Act does not provide for a second or subsequent application for compensation to be made. Therefore your client appears to be requesting that the Justice Secretary reconsider his decision to refuse your client's original application for compensation.

The statutory test for entitlement to compensation was and remains that set out in section 133 of the Criminal Justice Act 1988. Although the Supreme Court in Adams has now definitively decided the correct interpretation of the term "miscarriage of justice" in that section, the alternative possibilities which the Supreme Court was being asked to consider have been the subject of argument in the High Court and the Court of Appeal for some years.

You brought judicial review proceedings, on behalf of your client, in January 2009. Permission was refused by the Court on 24 March 2009. The claim was renewed by your client and at a subsequent hearing on 9 June 2009, the judge refused to grant permission having concluded that the Justice Secretary had made the correct decision in this matter.

Therefore the Justice Secretary has declined to reconsider your client's case."

198. On 15 December 2011, the solicitors acting for the claimant wrote a judicial review Pre-action Protocol Letter suggesting that the wording of the Act, and indeed the wording of the application form provided to applicants for compensation under the Act, implied that:

"it is evident that the questions envisaged repeat applications relating to the same conviction, and that new information might affect the earlier decision. This is strongly indicative of the fact that repeat applications are permitted, envisaged and planned for within the application system. There is nothing prohibiting the Justice Secretary from reconsidering applications if there is a relevant development which may impact on the likelihood of a previously rejected application being eligible for compensation. Parliament has clearly decided, by virtue of the 1988 Act, not to exclude such a possibility. On the contrary, had Parliament wished to exclude the reconsideration of a repeat application from the ambit of the statutory scheme, it would have expressly legislated for this."

199. The Secretary of State replied in a letter dated 22 December 2011. The relevant parts of this reply read as follows:

"7. The Justice Secretary is not aware of any new or newly discovered fact which has arisen subsequent to his decision to reject your client's application in October 2008. Your submission that the Adams judgment itself amounts to a "material change in circumstances" justifying the re-consideration of your client's application is not accepted. The Adams judgment cannot reasonably be said to constitute a new fact justifying either the consideration of a further application or the re-consideration of the original.

8. We note that you do not suggest that the facts upon which the Minister refused compensation to your client in October 2008 would meet the demanding test as set out in Adams, namely that the evidence against him was so undermined that no conviction could possibly be based upon it.

9. As there are no new facts that the Justice Secretary has not considered, there is no rational basis for re-considering your client's application or for considering a fresh application. It is denied that this approach is either irrational or amounts to a "blanket policy", as it is entirely logical and does not necessarily apply to all repeat applications e.g. second applications requiring new facts to be considered which were not subject to the first application. This is reflected in the application form (to which you refer in your letter), which specifically invites the applicant to specify any new information which might affect the earlier decision. Therefore, as there is no blanket policy, it is denied that the Justice Secretary has fettered his discretion.

10. We note that your client brought judicial review proceedings in January 2009 following the Justice Secretary's decision to refuse his application in October 2008. The court refused to grant permission in March 2009 and again at a subsequent hearing in June 2009. The present claim appears to be a misguided attempt to open up those proceedings or circumvent the limitation period following the refusal in October 2009. On your analysis, subject to a convenient change in the law, claimants would forever have the opportunity to bring a claim, potentially decades after the event, notwithstanding the relevant limitation provisions. This would promote a lack of certainty in the legal process and would be manifestly unfair on Defendants. In any event, as submitted above, it is not accepted that the Adams judgment requires the Justice Secretary to re-consider your client's application."