Ali & Ors, R (on the application of) v Secretary of State for Justice

This is the judgment of the court to which we have both contributed. These judicial reviews concern the effect of the decision of the Supreme Court in R (Adams) v Secretary of State for Justice; Re MacDermott, and Re McCartney [2011] UKSC 18, hereafter “the Adams cases”. The Supreme Court broadened the band of persons whose convictions were reversed who qualify for compensation under section 133 of the Criminal Justice Act 1988 (“the 1988 Act”) on the ground that there has been a “miscarriage of justice”. As a result, some of those whose previous applications for compensation were rejected on the basis of the former understanding of the law reapplied. A number of those whose applications were again refused by the Secretary of State have challenged his decision to do so. The five claimants, Ismail Ali, Kevin Dennis, Barry George, Ian Lawless, and Justin Tunbridge, are in this category. On 18 May 2012 Irwin J ordered their cases to be treated as lead cases, presenting the court with a range of factual scenarios to enable it to provide some guidance as to the application of the decision of the Supreme Court.

The question of whether and, in what circumstances, a person whose conviction has been set aside or who has been pardoned should be so compensated was said by Lord Bingham in Re McFarland [2004] UKHL 17 at [7] to be “a difficult and sensitive one”. This is because of (a) the need to distinguish those who are the innocent victims of mistake or misidentification and those who are fortunate to have escaped their just deserts, (b) the difficulty in some cases of doing so, and (c) the “interaction, in this field, of judicial and executive activity” with the consequent need for each of these two branches of the State to recognise and respect the proper role of the other.

Section 133 of the Criminal Justice Act 1988 gives effect in domestic law to the United Kingdom’s obligations under Article 14(6) of the International Covenant on Civil and Political Rights 1966 (“the ICCPR”) to provide a right to compensation to those whose convictions for a criminal offence have been reversed, or who have been pardoned on the ground that a new or newly discovered fact shows that there has been a miscarriage of justice. Article 14(6) states that the new or newly discovered fact must “conclusively” show that there has been a miscarriage of justice. Section 133, adapting the language of the ICCPR to a common law context and the division of functions between judge and jury, states that the new or newly discovered fact must show “beyond reasonable doubt” that there has been a miscarriage of justice. We set out section 133, as amended at [22].

“Miscarriage of justice” is a concept which, as a matter of general language, has a number of legitimate meanings, and can have a wide meaning. It is the fundamental concept in Article 14(6) and section 133 and it has been accepted that in this specific context it has an autonomous meaning which is narrower than the way it can be understood in other contexts. There is a history of disagreement between senior judges about the meaning of the statutory concept in section 133 and the way qualifying “miscarriages of justice” are to be formulated. The differences can be seen in the decisions of the House of Lords in Re McFarland [2004] UKHL 17 and R (Mullen) v Home Secretary [2004] UKHL 18, and that of the Supreme Court in the Adams cases.

Before the decision of the Supreme Court in the Adams cases on 11 May 2011, a disagreement between Lord Steyn and Lord Bingham in Mullen’s case had been resolved by the Court of Appeal in R (Allen) v Secretary of State for Justice [2008] EWCA Civ 808 at [40] and by the Divisional Court in R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin) at [49] in favour of Lord Steyn’s view. Lord Steyn considered that section 133’s concept of “miscarriage of justice” only included the cases of persons who were demonstrably innocent; that is where the person concerned has shown that he is clearly innocent. Lord Bingham’s provisional view was that the concept had a wider meaning and also encompassed cases where, although it is not possible to say a person is innocent, it is possible to say he has been wrongly convicted because of a “failure of the trial process”.

In the Adams cases four members of the Supreme Court were of the same view as Lord Steyn in Mullen’s case. They would have confined “miscarriage of justice” and the scope of section 133 to cases in which the individual is shown, beyond reasonable doubt, to be innocent of the crime for which he had been convicted. But they were in the minority. Five members of the Court held that Lord Steyn’s interpretation was too narrow. It is therefore now clear that the concept of “miscarriage of justice” under section 133 is broader, and does not only cover those who show they are demonstrably innocent.

The issues identified by the parties to these five lead cases (set out at [13] – [14]) are said primarily to concern the application of the decision of the Supreme Court and, in one sense, are presented as “second order” questions. It will, however, not be possible to address them without first considering what falls within the broader meaning given by the Supreme Court to the concept of “miscarriage of justice” in section 133. It will be seen that this is not entirely straightforward.

A significant part of the discussion has proceeded by categorising cases in which the Court of Appeal Criminal Division (hereafter “the CACD”) has set aside a conviction on the ground of new evidence, and then seeking to identify which of those categories would qualify as miscarriages of justice within section 133. The categorisation of Dyson LJ in the Court of Appeal in Adams case ([2009] EWCA Civ 1291 at [19]) was used as a framework for discussion in the Supreme Court by Lord Phillips, Lord Hope and Lord Clarke. Although the Supreme Court restated the second of these categories, and although Lord Kerr (at [179]) warned that consideration of possible categories of entitlement tends more to confuse than enlighten, Dyson LJ’s categories remain a useful starting point.

In the Supreme Court in the Adams cases, Lord Phillips reformulated category 2. He stated (at [55]) that “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”. He described this as “a more robust test”, “workable in practice”, and a test “capable of universal application” rather than being so only in common law jurisdictions. Lord Hope, who agreed with Lord Phillips’s formulation, stated (at [101]) that Dyson LJ’s test was too broad. His agreement with Lord Phillips’s formulation suggests that he considered it was narrower. It, however, cannot be said (see below at [32] and [33]) that Lord Kerr and Lord Clarke saw Lord Phillips’s formulation as a narrower test than Dyson LJ’s. We consider whether the differences are merely ones of formulation or whether they reflect differences of substance at [37] –[38].

The details of the cases of the five claimants are given in section VI of this judgment. At this stage, it suffices to give a thumbnail sketch of each case to provide some context to the list of issues before us. Their convictions were reversed by the CACD on dates between 26 March 2004 and 26 June 2009. Three of them, Messrs Ali, Lawless and Tunbridge, were not subject to a retrial after the CACD quashed their convictions. In the case of Mr Dennis, the CACD ordered a retrial, but at the retrial the trial judge accepted, in the absence of the expert evidence which had been discredited and had led to his original conviction being set aside, that there was no case to answer, and Mr Dennis was then acquitted on the direction of the judge. Mr George was retried and an application to stop the case at half-time was rejected. The jury deliberated for two days and then acquitted him.

All the claimants applied for compensation under section 133. Their applications were made and refused by the Secretary of State between June 2008 and December 2009, long before the decision of the Supreme Court in the Adams cases. Four of the claimants lodged judicial review applications against those refusals. They did so on the following dates: 17 October 2008 (Mr Tunbridge), 23 November 2009 (Mr Ali), 7 December 2009 (Mr Lawless), and 15 January 2010 (Mr George). These challenges were also lodged long before the decision of the Supreme Court. The applications of Messrs Ali, George and Lawless were, in different circumstances, stayed pending the decision of the Supreme Court. Messrs George and Lawless were also given permission to apply for judicial review. Mr Ali was refused permission on the papers and his case was stayed before it was renewed to an oral hearing. Mr Tunbridge’s renewed application for permission was refused by Blair J at an oral hearing on 9 June 2009 because, on the pre-Adams understanding of the law, his challenge was unarguable. In the case of Mr Dennis, a letter before claim was written on his behalf on 15 May 2009. The defendant responded on 8 June 2009. Thereafter, no proceedings were lodged by Mr Dennis in the almost two years until the decision of the Supreme Court in the Adams cases.

After the decision of the Supreme Court, the claimants cited made new applications for compensation or asked that the Secretary of State reconsider his refusal of their pre Adams applications. Messrs Ali, Dennis, and Tunbridge, applied respectively on 29 May, 10 June, and 17 June 2011. The Secretary of State maintained the previous decision in their cases, in the case of Messrs Ali and Dennis after initially refusing to reconsider it. In the case of Mr Tunbridge he declined to reconsider the previous decision on the ground that there were no new facts which had not been considered. The Secretary of State also reconsidered the previous decision in the cases of Messrs George and Lawless, and maintained it. Thereafter, the cases which had been stayed proceeded, and Messrs Dennis and Tunbridge lodged judicial review proceedings on 20 January 2012. They and Mr Ali were given permission to apply for judicial review during the course of the hearing.

The parties attempted to agree a list of the issues which arise in these cases but, save in respect of two generic issues (issues (4) and (5) in the list below), they did not succeed. Mr Strachan, on behalf of the defendant, submitted that questions such as when a person is demonstrably innocent, when evidence is so undermined by a new fact or facts that no conviction could be based on it, the approach to be taken by the Secretary of State when considering the decision of the CACD quashing the relevant conviction, and the extent to which the Secretary of State should apply procedural and evidential rules of the type that would be applied by a trial judge in considering an application, were dealt with comprehensively in the Adams cases. He maintained that, to a large measure, they are fact-specific and not susceptible of a generic approach.

It is useful to list the questions which one or both of the parties maintained fell for decision, and to summarise our conclusion on them or indicate where we address them. They are: -

Background

In the United Kingdom, since at least 1904, in certain circumstances the State has compensated those whose convictions for a criminal offence have been reversed, or who have been pardoned. Until 1988 the provision was non-statutory and ex gratia. The administrative and legal arrangements have evolved from an ad-hoc ex gratia scheme to the statutory provision made in section 133 of the Criminal Justice Act 1988 which gave effect in domestic law to the United Kingdom’s obligations under Article 14(6) of the ICCPR to provide a right to compensation. The statutory provision, albeit creating a right, is less generous than the previous ad hoc and ex gratia arrangements.

The way the arrangements have evolved from ad hoc and ex gratia arrangements to a statutory right is set out in the decisions of the House of Lords and the Supreme Court:[2004] UKHL 17 at [7] – [8] (Lord Bingham); [2004] UKHL 18 at [3] – [6] (Lord Bingham) and [25] – [29] (Lord Steyn), and [2011] UKSC 18 at [72] – [81] (Lord Hope). Here it is only necessary to summarise what happened.

The United Kingdom ratified Article 14(6) of the ICCPR in May 1976. Perhaps in part as a result of that ratification, in July 1976 the previous ad-hoc practice of paying compensation to some persons who had been acquitted or whose conviction was reversed was put on a more systematic footing. Mr Roy Jenkins MP, the then Home Secretary, outlined the procedure to be followed when ex gratia payments were to be made to a person who had been detained in custody, stating inter alia that “payment is offered in recognition of the hardship caused by a wrongful conviction or charge”. (Footnote: ¹)

In November 1985 Mr Douglas Hurd MP, the then Home Secretary, set out amended arrangements for compensation. (Footnote: ²) He stated that in future compensation would be paid where this was required by the United Kingdom’s international obligations; that is where it was required under Article 14(6) of the ICCPR. The terms of Article 14(6) are set out in the statement. Mr Hurd also stated that he remained willing to pay compensation in two other circumstances. Accordingly, compensation continued to be paid under extra-statutory and ex gratia arrangements administered by the Secretary of State. The three circumstances in which it was paid were:

The explicit use by the then Home Secretary of the language of Article 14(6) and the way the other two circumstances were described made it clear that the principal ground upon which compensation was to be paid to those who had spent a period in custody would no longer be “a wrongful conviction or charge”, but “a new or newly-discovered fact [which] shows conclusively that there has been a miscarriage of justice”. Moreover, compensation would not be paid where it was “proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to” the person whose conviction has been reversed (emphasis added).

Pressure on the United Kingdom to put its obligations under Article 14(6) on a statutory footing, and thus to give full effect to them in domestic law, led to the enactment of section 133. It came into effect on 29 July 1988. Successive governments also agreed to continue to pay compensation on a non-statutory, ex gratia, basis in the other two situations in Mr Hurd’s statement: see for example Mr Jack Straw MP, HC Deb 17 June 1997, col 99. There was, therefore, after 29 July 1988, a statutory compensation scheme and an ex gratia one covering the two other specified circumstances. The former created a right in those eligible. The ex gratia scheme did not, but the Secretary of State’s powers were limited by the requirements of public law.

The position changed in 2006, when the government decided to end the ex gratia system. It was announced that applications in England, Wales and Northern Ireland received after 19 April 2006 would only be considered under the statutory scheme. The result has been (see the figures set out in Adams’ case [2011] UKSC 18 at [75] byLord Hope) that the number of applications has fallen very substantially.

Criminal Justice Act 1988, section 133

The material parts of section 133, as amended, provide:

“133 Compensation for miscarriages of justice.

(1)

Subject to subsection (2) below, when a person has been convicted of a criminal offence (Footnote: ³) 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 (Footnote: ⁴) 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. (Footnote: ⁵)

…

(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—

under the Criminal Appeal Act 1995; or

under section 194B of the Criminal Procedure (Scotland) Act 1995 (c.46);

…

(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 offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial.” (Footnote: ⁶)

The key to the interpretation of section 133, including the concept of “miscarriage of justice”, is a correct understanding of Article 14(6). Achieving that understanding is, however, difficult, not least because the delegates at the meeting which adopted Article 14(6) did not have a unanimous view as to its meaning. The term “miscarriage of justice” may have been adopted because it offered what Lord Bingham (in Mullen’s caseat [9(2)]) regarded as “latitude in interpretation”. In the Adams cases, Lord Kerr (at [175]) regarded Article 14(6) as “a normative statement which provides a general template for domestic provisions … which can vary as to content”. See also the New Zealand Law Commission Report No 49 (1988) § 71.

The pre-Adams Cases

We have summarised (see [5]) the views of Lord Steyn and Lord Bingham in Mullen’s case. Lord Bingham’s provisional view that the concept had a wider meaning than only the demonstrably innocent relied inter alia (see [2004] UKHL 18 at [9(2)]) on the contents of the travaux préparatoires of the negotiations which culminated in the adoption of the ICCPR. These showed that “every proposal that compensation should not be paid save to those who were shown to be innocent” was voted down. Lord Bingham also considered (see ibid. [9(2)]) it to be an objection to the narrower view adopted by Lord Steyn “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”. This second consideration weighed heavily with the majority of the Supreme Court in the Adams cases: see [2011] UKSC 18 at [95], [116], [172], [195(f)] and [206], per Lord Hope, Baroness Hale, Lord Kerr, and Lord Clarke. Cf. Lord Phillips ibid. at [45] – [46].

In Mullen’s case Lord Rodger agreed with Lord Steyn. Lord Walker was inclined to do so, and Lord Scott expressed no view, but in the circumstances of that case it was not necessary to choose between their views. It was agreed by all that on the particular facts of the case there had been no “miscarriage of justice” because Mr Mullen’s conviction had not been overturned as a result of a failure in the trial process. It had been overturned because of a serious abuse of executive power by British authorities in securing Mr Mullen’s unlawful deportation from Zimbabwe to the United Kingdom. It was accepted that, had it been fair to try him, he had been properly convicted. It was also accepted ([2004] UKHL 18 at [11] – [12]) that the case fell within the first limb of what Dyson LJ has termed category 4 (something seriously wrong in the investigation of the offence) and was in principle within the ex gratia scheme. We add that in that case, Lord Bingham stated (at [12]) that the Secretary of State was accorded “some latitude in the administration of an ex gratia scheme, so long as he act[ed] fairly, rationally, consistently and in a manner that does not defeat substantive legitimate expectations”. He also stated that the Secretary of State was entitled to depart from his usual policy because of the concession that Mullen had been “properly convicted”.

After the decision in Mullen’s case, Secretaries of State in England applied an innocence test (see [2011] UKSC 18 at [207] per Lord Clarke). As we have stated ([5]), Lord Steyn’s narrower view was adopted by the Court of Appeal in 2008 and by the Divisional Court in 2009. The position was that only cases within category 1, those of the demonstrably innocent, qualified as miscarriages of justice under section 133.

The decision of the Supreme Court

The decision of the majority of the Supreme Court in the Adams cases established that miscarriage of justice under section 133 is a broader concept than category 1, the cases of the demonstrably innocent. Although the submissions on behalf of Mr George suggested otherwise, and Lord Clarke (at [212]) considered that in principle or potentially a case could qualify where a conviction is quashed because something has gone seriously wrong in the investigation of the offence and the abuse cannot be cured, it is clear that the concept does not extend to Dyson LJ’s categories 3 and 4. But as to the territory between category 1 and category 3 which the majority of the Supreme Court held fell within the statutory concept of miscarriage of justice, the position remains less clear. It is not straightforward to formulate the additional category or categories of case in this territory which a majority of the Court held would qualify as a “miscarriage of justice” under section 133.

Three of the five members of the majority appeared to find Dyson LJ’s category 2 unsatisfactory as a definition of “miscarriage of justice” and eligibility under section 133. Lord Phillips did so explicitly. He (see [51] – [54]) considered Dyson LJ’s formulation applied a test the result of which depended critically on common law procedural rules and the division of functions between judge and jury in common law systems. In those systems, but not in civil law systems, or jurisdictions in which there is no trial by jury, the judge is given what is often a difficult judicial task of screening from the jury evidence on grounds of fairness, under provisions such as sections 76A and 78 of the Police and Criminal Evidence Act 1984. (Footnote: ⁷) Lord Phillips also considered that Dyson LJ’s category 2 required the Secretary of State to be “satisfied beyond reasonable doubt that no reasonable jury could have been satisfied beyond reasonable doubt that the defendant was guilty”, which he considered was not a very sensible test. He stated (at [55]) that he would replace Dyson LJ’s category 2 with “a more robust test” requiring that the new fact “so undermines the evidence against the defendant that no conviction could possibly be based on it”.

Lord Hope and Baroness Hale (at [96], [102] and [114]) agreed with the position of Lord Phillips and with his formulation. Baroness Hale considered (see [118]) that the statutory concept of miscarriage of justice in section 133 was to be limited to a person who “should not have been convicted because the evidence against him has been completely undermined”.

Lord Hope stated (at [96]) that the cases in which a person who could not prove that he was innocent could bring himself within section 133 were “cases where the new or newly discovered fact shows conclusively that there was a miscarriage of justice because the evidence that was used to obtain the conviction was so undermined by the new or newly discovered fact that no conviction could possibly be based on it”. At [98] he stated that the range of cases that will fall into this category is limited by the requirement that the new or newly discovered fact has “completely undermined” the evidence “which was the basis for the conviction.”

Lord Hope, like Lord Phillips, did not favour a test which referred to what a reasonable jury would do. He considered (at [101]) that was a matter best left to the courts. He also considered that Dyson LJ’s category 2 was too broad because, although it described CACD practice, it lacked “the limiting factors indicated by the words ‘new or newly discovered fact’ and ‘shows conclusively’”. He preferred to focus the test on whether, as a result of the new or newly discovered fact, no prosecution ought to have taken place. Lord Hope sought to rephrase category 2 so that (see [102]) “it fits with the narrowly circumscribed language of Article 14(6) and section 133. It is, however, to be noted that the phrase “shows conclusively” in Article 14(6) was replaced in section 133 by one more appropriate in a common law jury system, “shows beyond reasonable doubt”.

Lord Kerr and Lord Clarke were much less hostile to Dyson LJ’s formulation or to a test which referred to what a reasonable jury would do. They would have proposed different tests to that proposed by Lord Phillips. But they also, albeit with qualifications, accepted Lord Phillips’s formulation. We have asked ourselves whether the qualifications made by Lord Kerr and Lord Clarke to their acceptance of Lord Phillips’s formulation expose underlying differences of substance or whether they merely reflect differences of formulation.

Lord Clarke considered (see [194] and [216]) that Dyson LJ’s formulation was appropriate. The test (see [205]) was one used at the end of the prosecution case in countless criminal trials, and was relevant to the CACD in considering whether to order a retrial. He clearly considered that it was sensible, when formulating a test that would be applied in the courts of England and Wales, to do so in a way which reflected the nature of the legal system in which it would be applied.

Although Lord Clarke ultimately accepted Lord Phillips’s “more robust” test, he did so on the basis (see [217]) that it was consistent with Dyson LJ’s category 2. He considered ([216]) that the Secretary of State is required to consider the effect of the new or newly discovered fact upon the other evidence before the court, and that “this involves the evaluation of the evidence in its legal context”. He also considered (see [212]) that category 2 “potentially includes a case where the new or newly discovered fact is such that, if it had been known at the trial, the trial judge would have stopped the trial on the ground of abuse of process” if the CACD concluded that a new trial could not properly be ordered on the basis that it was not possible to cure the abuse. Lord Kerr stated (at [178]) that Lord Clarke considered that Lord Hope’s approach risked the inquiry wrongly focusing on the propriety of the decision to prosecute by reference to the circumstances that obtained when the decision was taken, as opposed to those obtaining in the circumstances of the new or newly discovered facts. Parts of Lord Clarke’s judgment (see [229] and [210] – [211]) do indeed suggest this but he does not say so in terms.

Lord Kerr (at [178]) stated that the test he would have proposed was whether, on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that the applicant should not have been convicted. He also stated that “a claimant for compensation will not need to prove that he was innocent of the crime, but he will have to show that, on the basis of the facts as they are now known, he should not have been convicted or that conviction could not possibly be based on those facts”. Lord Phillips’s formulation appeared to Lord Kerr “to achieve the same result as the test which [he] would have proposed and [he was] therefore quite content to subscribe to his formulation”.

Lord Kerr (at [177]) considered that, in practice, there may be little difference between Lord Hope’s test that section 133 includes cases where, as a consequence of the state of affairs revealed by the new or newly discovered fact, it is conclusively shown that no prosecution ought to have taken place and Lord Clarke’s definition of the category of eligible cases as extending to those where the new or newly discovered fact leads inexorably to the conclusion that no jury, properly directed, would have convicted. Lord Kerr (at [177] and [179]) considered it important that, if possible, clear guidance be given as to the circumstances in which section 133 should be held to apply, and that “the adoption of a single, simple test dispenses with the need to consider possible categories of entitlement”, which he believed tended more to confuse than to enlighten.

Lord Kerr’s acute awareness of the importance that, if possible, the decision of the Supreme Court should give clear guidance as to the circumstances in which section 133 applies, and Lord Clarke’s view (see [216] – [217]) that Lord Phillips’s formulation was consistent with the category 2 test formulated by Dyson LJ and favoured by him because “in such a case, no reasonable jury properly directed could convict the defendant”, suggests a difference of formulation rather than one of substance. But Mr Strachan submitted that, while individuals who met the formulation of Lord Phillips would also meet the formulation of Dyson LJ and Lord Clarke, it does not follow that an individual who satisfies the latter formulation would also satisfy that of Lord Phillips. This he suggested was particularly so in view of what Lord Phillips had stated about the need to avoid tying consideration to common law procedural and evidential practice.

Although there is some force in Mr Strachan’s submissions, if he is correct the discovery of a ratio in the majority judgments becomes virtually impossible. Mr Strachan invited the court to regard the differences as of substance, but to disregard the qualifications of, in particular, Lord Clarke’s assent to Lord Phillips’s formulation. In all the circumstances we have, not without hesitation, been driven to the conclusion that the differences in the preferred formulations do not reflect a difference of substance. We now turn to the consequences in practice of our conclusion.

Establishing a case is within category 2

The fundamental question is the application of the test for category 2 cases. The other key questions largely flow from the answer to that problem. Common to the views of all the majority in the Supreme Court, reflecting the statutory language and the history of the development and drafting of the International Covenant, is the proposition that a compensatable miscarriage of justice arises when fresh evidence (“new or newly discovered fact”) demonstrates conclusively (“beyond a reasonable doubt”) that the claimant could not now be properly convicted, with the proviso that the non-disclosure of the “fresh” evidence cannot be attributed wholly or partly to the claimant. In our view, what Lord Phillips stated at [53] of his judgment in the Adams cases is not a rejection of the substance of section 133 of the 1988 Act. The double reference to proof beyond reasonable doubt, the one derived from the 1988 Act itself and the other a necessary incidence of a just or proper conviction under our system, undoubtedly leads to a very awkward form of words. Lord Phillips substituted the phrase “no conviction could possibly be based upon [the evidence]”. That formulation still carries the requirement that a claimant must prove to a high standard, so that one can be sure, that no proper conviction could now be achieved.

In our view, it is highly desirable that the test should be formulated in a practicable way, and with reference to the system of criminal justice that obtains in England and Wales. It must accommodate the fundamentals of that system: the burden and standard of proof, and the tribunals of fact who reach conclusions on guilt or innocence. In avoiding the infelicity of “satisfied beyond reasonable doubt that no reasonable jury could have been satisfied beyond reasonable doubt that the defendant was guilty,” we do not take Lord Phillips to have intended to depart from those fundamentals. In the test formulated by him, and specifically in the phrase “no conviction could possibly be based upon it”, we do not understand him to convey anything other than a consideration of what a jury (or magistrates) might do when properly directed as to the law and acting reasonably. In his phrase, the word “possibly” stands proxy for the high standard, demanded by the statute, by which a claimant must prove that no reasonable jury could properly convict. The formulations preferred by Lord Clarke and Lord Kerr did this in a different way, and one that we consider is more sensitive to the trial processes in this jurisdiction.

With great deference to Lord Phillips, we suggest that the following formulation, 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?”

The approach to decisions of the CACD

It is to be emphasised that in any case the CACD is concerned with the safety of the conviction and not whether an appellant is innocent. The fact that the court does not express a view on innocence or guilt cannot of itself disentitle an appellant from qualifying under section 133.

It may often be relevant whether or not a retrial has been ordered, and no doubt great attention should be paid to any comments from the court about the evidence. Ordering a retrial, or refusing to do so, may not be conclusive. An order for retrial may often be made in the live expectation that there is to be a detailed review of the evidence on the part of the Crown before making a final decision as to whether or not to proceed a second time. Refusal of an application for a retrial will often reflect the history of the case rather than the prospects for a safe conviction following retrial, particularly where the successful appellant has served all or much of the sentence. Whether a retrial has been ordered or not, the evidential position may continue to evolve, in many cases as a result of further investigation prompted by the fresh evidence which disturbed the conviction, or prompted by observations from the court.

We cannot conceive of circumstances where it would be proper for the Secretary of State to take a different view of a case from that taken by the CACD, save where the evidence has evolved after the hearing of the appeal. A statement from the court that, given the state of the evidence, the case should have been withdrawn from the jury at the close of the prosecution case, may well be of particular significance. Broadly, any conclusion and order of the CACD will carry the greatest weight, but it must be borne in mind at all times that the court is focused on a different question: is the conviction unsafe?

Procedural and evidential rules

In the Adams cases (at [52]) Lord Phillips stated he did not believe that section 133 should require the Secretary of State to decide whether the fresh evidence would have rendered inadmissible the primary evidence to which it related, in order to answer the question whether, had the fresh evidence been available at the trial, there would have been a case upon which a reasonable jury could convict. In the case of Dennis in these proceedings the defendant relied significantly on this statement to justify disregarding what are somewhat pejoratively described as “technical” rules of evidence: see below [123], [127] and [129].

We have already emphasised the need for the approach to be practicable, and to live alongside the English criminal justice system. Rules of evidence may be complex to apply. Rulings on admissibility may involve what is often described as an exercise of discretion on the part of the trial judge, although it is probably more accurate to conceive of such judicial decisions as exercises of judgment. Certainly, there may on occasions be different outcomes when different judges address questions of admissibility. That may self-evidently be so where there has been an alteration in the evidence to be considered. For example, consideration as to the admission of bad character evidence will sometimes properly depend upon an assessment of the other evidence available to the Crown, meaning that an alteration in that other evidence alters the question for the judge. Such change may easily arise between first trial and retrial, as (see [111] – [112]) was the position in Dennis’s case. Of course, it may also simply be that different judges reach different decisions based on finely balanced questions of admissibility.

None of that justifies the Secretary of State in dismissing the law of evidence, or the rulings of judges in given cases. It may be fair to use the term “technical” about the law of evidence in the sense of “difficult” or “complex” but it is never acceptable to deploy the term as meaning “not worthy of respect”. In the absence of a change in the evidence coming later than a given judicial ruling, we would consider it proper for the Secretary of State to differ from such a ruling only in the rarest of circumstances and only on a fully reasoned basis. The decisions of the Secretary of State are susceptible to judicial review. It is not acceptable for the Secretary of State in effect simply to advance the proposition “another judge might have decided differently”. If the Secretary of State does intend to take a different conclusion from that reached by a judge, a claimant is entitled to know why.

The effect of a retrial

Where a retrial takes place and the matter is left to a jury for a second time, at least three thresholds will necessarily have been passed. The first is that the CACD will have concluded that a retrial is proper. Secondly, the Crown in exercising its continuing duty only to pursue proper prosecution must necessarily have decided that the evidential test for conviction has been passed. Thirdly, a judge must necessarily, if only by implication, have considered at the close of the evidence that there was a proper case to go to the jury. It is clear from the part of the judgment of Lord Hope in the Adams cases which we discuss at [155] that, save in the most exceptional circumstances, after a retrial at which there was a proper case to go to the jury, a claimant would not be able to establish a valid claim for compensation for miscarriage of justice within category 2. It may occasionally happen that fresh evidence will become available after the second trial which is capable of demonstrating the innocence of a convicted person. But such a development is no basis for finding that a claimant was not properly convicted at the retrial.

It is of course conceivable that further fresh evidence will emerge after a retrial has been ordered, but before it takes place. It may also emerge in the course of the retrial, before or after the close of the prosecution case. On the facts of a given case, it may be possible for a defendant acquitted by a jury on a retrial to make a valid claim. Such cases will inevitably be rare but they cannot be precluded. All that can be said is that the particular circumstances of each case must be looked at, and it is not a sufficient exercise of reasoning on the part of the Secretary of State when dismissing a claim simply to recite the fact that the CACD granted permission to the Crown to have a second trial.

Reconsidering previous decisions

This question has arisen in the cases of Messrs Dennis and Tunbridge. We discuss the principles and their application when dealing with Tunbridge’s case at [205] – [211]. At this stage it suffices to state that, under the general principles of public law, a decision which is not successfully challenged is presumed to be valid. We consider that, in view of the public interest in promptness and finality, in general, only where the earlier decision was made within three months of the decision of the Supreme Court in the Adams cases, will the Secretary of State be required to reconsider an application in the light of the decision of the Supreme Court. This is because it is only in those cases that it will be possible to challenge the earlier decision by judicial review.

Common Law

Mr Cragg, on behalf of Messrs Ali, Dennis and Tunbridge, submitted that, in an application for judicial review of the Secretary of State’s decision to refuse compensation, the role of the court is to determine whether or not the statutory test is met. The other claimants, in particular Mr Stanbury, on behalf of Mr Lawless, supported his submissions. The claimants’ position is that it is for the court to determine for itself whether or not an applicant falls within category 1 or category 2, and thus satisfies the criterion in and qualifies under section 133 of the 1988 Act. It was submitted that this is clear from the structure and terms of section 133 and from the decision of the Supreme Court in the Adams cases.

As to the structure and terms of section 133, Mr Cragg relied on the fact that, once the statutory criterion is met, section 133(1) is mandatory. It provides that “the Secretary of State shallpay compensation for the miscarriage of justice” (emphasis added). The eligibility criterion is, he submitted, objective and involves “hard-edged questions of fact and law” which are for the court, not for the Secretary of State. The nature of the test is thus said to leave little scope for a range of possible views as to whether the statutory criterion is met, and any set of facts “permits of only one answer” (see Mr Cragg’s supplementary skeleton argument, paragraph 3(d)). Mr Cragg also argued that the reference in section 133(3) to “a right to compensation” entails an entitlement dependent on the precedent fact established in section 133(1) rather than on the exercise of discretion by the Secretary of State.

It was also contended that, in the Adams cases, each member of the majority expressed his or her own view as to whether the facts of the cases they were considering met the test: see Lord Phillips at [64] and [65], Lord Hope at [112] and [113], Baroness Hale at [118], Lord Kerr at [182] - [183], and Lord Clarke at [236] - [237]. Mr Cragg also pointed to the analysis of the cases of Messrs MacDermott and McCartneyby Lord Kerr at [158] – [164]. That full and detailed analysis was said directly to address the question whether a conviction could be based on the evidence once the new or newly discovered fact had been taken into account. It did so by asking what would have happened if those details had been known at the time of the reversal of the conviction. That approach, it was argued, shows their Lordships addressed the merits.

Mr Cragg referred to the role of the court as one of “review”: see e.g. reply skeleton, paragraph 22. But the position for which he contended is not a description of the classic role of the court when exercising its supervisory jurisdiction or even the heightened scrutiny identified by Sir Thomas Bingham MR in cases such as R v Ministry of Defence ex p. Smith [1996] QB 517. It was submitted on behalf of the claimants that this far more extensive role is appropriate in dealing with something as fundamental as a miscarriage of justice which has led to imprisonment. Mr Stanbury relied on Lord Steyn’s characterisation in R (Mullen) v Home Secretary [2004] UKHL 18 at [26] of the right to compensation for miscarriages of justice as a fundamental human right.

It was also submitted on behalf of the claimants that the determination of eligibility for compensation under section 133 of the 1988 Act is the determination of a civil right for the purposes of Article 6 of the ECHR. The two strands of the submissions are closely related. If a person’s civil rights are determined under section 133, Article 6 requires that the determination be by an independent and impartial tribunal. Since the Secretary of State is not an independent and impartial tribunal, it is argued that the level of scrutiny by the court must be sufficiently intense to address the limitations of the decision-making process by the Secretary of State.

We shall first deal with the role of the court without regard to Article 6. Taking account only of the 1988 Act and the position at common law, we reject the submissions on behalf of the claimants on this matter. It is clear from section 133 that Parliament has given the Secretary of State the function of determining whether “a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”. Section 133(1) first sets out the eligibility criterion. Only when that criterion has been met and there has been a determination to that effect is the Secretary of State required to pay compensation. If there was any doubt that this is the consequence of the structure of section 133(1), it is removed by the express provision in section 133(3) that “the question whether there is a right to compensation under this section shall be determined by the Secretary of State”. The claimants’ contentions on this issue would denude these words of a substantial part of their meaning, because they in effect require section 133(3) to be read by adding words on the lines of “subject to the decision of the High Court in judicial review proceedings” at the end of the sub-section.

Apart from the express terms of section 133, the fact that eligibility depends on whether the new or newly discovered fact “shows beyond reasonable doubt” that there has been a miscarriage of justice, demonstrates that what is involved is an exercise of judgment by the Secretary of State applying the two criteria identified in the Adams cases. We accept Mr Strachan’s submission that whether a case falls within either of the two qualifying categories does not necessarily admit of an inherently right or wrong answer, but requires the appointed decision-maker to make an assessment and reach a decision. It is not a wholly objective question. It therefore differs from the question whether someone is under the age of 18 and is therefore a child: see R (A) v Croydon LBC [2009] UKSC 8 at [27] per Baroness Hale) and is more like the question whether a person is a “child in need”: ibid. at [26]. The Supreme Court in A’s case treated the first but not the second question as one of jurisdictional fact. It did not so treat the second question because it is an evaluative question. Accordingly, the public body to which Parliament gave the task was to make the determination, subject to the control of the courts on the principles of ordinary judicial review. Baroness Hale stated that “within the limits of fair process and Wednesbury reasonableness there are no clear-cut right or wrong answers”.

We, however, also recognise that, within a supervisory jurisdiction by way of judicial review, the scope and intensity of that review is not constant. Laws LJ, in R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115 at 1131, has described it as a sliding scale “more or less intrusive according to the nature and gravity of what is at stake”. In certain contexts, even in the case of an evaluative question, the line between a supervisory and an appellate jurisdiction may be almost non-existent. This is seen from the jurisprudence on the approach of the court to the certification of “clearly unfounded” asylum or human rights claims pursuant to the Nationality, Immigration and Asylum Act 2002 and Schedule 3 to the Asylum and Immigration (Treatment of claimants etc) Act 2004.

In ZT (Kosovo) v Home Secretary [2009] 1 WLR 348, Lord Brown (at [75]) considered that, in the context of certification, there was no material difference between a supervisory and an appellate jurisdiction. Lord Neuberger (at [83]) stated that, where there is no dispute of primary fact, the application of the normal judicial review test “will, at least normally, admit of only one answer”. At present a different approach is taken when considering the decision of the Secretary of State to refuse to regard a claim for asylum as a “fresh claim”, to certify a claim as “clearly unfounded” see R (MN (Tanzania)) v Secretary of State [2011] EWCA Civ 193 where Maurice Kay LJ sought to give some order to the case law and to make sense of the position in certification cases and in “fresh claim” cases. See further R (Toufighy and Duran) v Secretary of State [2012] EWHC 3004 (Admin) at [60] – [73], which discusses the consequences of the fact that the approach in the certification cases reduces the difference between review and appeal to vanishing point, save in a case which the court treats as exceptional. It was suggested that, in that context, the justification for a substitutionary approach may be that the question whether a claim is “clearly unfounded” and is bound to fail at the Tribunal is particularly suitable for determination by a court.

What is at stake when the Secretary of State determines whether there has been a miscarriage of justice which qualifies for compensation under section 133 of the 1988 Act, is of high importance and significance, not only to the individual concerned, but also as a matter of public interest. That is one of the reasons Lord Steyn characterised the right of those who qualify to compensation as a fundamental human right. It is also the case that the subject-matter of the decision, whether it has been shown beyond reasonable doubt that there has been a miscarriage of justice, is close to the heart of the court’s exercise of its criminal jurisdiction and this is a task which it is well equipped to undertake.

It does not, however, follow from this that the court is required to adopt a substitutionary, and in effect appellate, approach. So, for example, Fordham’s Judicial ReviewHandbook (6^th ed.) §16.4 states that “whereas, in general, a question of ‘interpretation’ (or ‘construction’) will be an objective legal question for the court to decide…a question of ‘application’ will be a ‘soft’ review”. Again, when the doctrine of proportionality requires a reviewing court to assess the balance which the decision-maker has struck rather than merely whether it is within the range of rational or reasonable decisions, that does not mean that there has been a shift to merits review. It does not mean that the requirement of proportionality requires “the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion”: see R v Secretary of State for the Home Department ex p. Daly [2001] UKHL 26 per Lord Steyn at [28] and AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 per Lord Reed at [131].

Even where the court is as well equipped as the Secretary of State to deal with an issue, it must not lose sight of the fact that Parliament has assigned the primary decision-making function to a minister or another public body. This is, for example, seen in the court’s approach when considering the decision of the Home Secretary as to whether a claim for asylum is a “fresh claim”. Although the court is considering a decision of a sort which is familiar to it and which it is well equipped to deal with, it has been held that “the court's supervisory role is fulfilled by a Wednesbury approach albeit tempered by the demands of anxious scrutiny”: per Laws LJ in TK (Sri Lanka) v SSHD[2009] EWCA Civ 1550, applying WM (DRC) v SSHD [2007] Imm App R. 337. This can be seen as according respect to the legislative decision, although it also produces what might be thought to be a questionable distinction between this situation and the position to which we have referred (at [59] above) where the court is considering the Secretary of State’s power to certify a claim as “clearly unfounded”: see R (MN (Tanzania)) v Secretary of State [2011] EWCA Civ 193.

In the present context, there is a particular factor which points against a substitutionary approach. We have referred (see [2]) to the statement of Lord Bingham in Re Macfarland that the question of whether and in what circumstances compensation should be paid to a person whose conviction has been set aside as “difficult and sensitive”. The reasons he gave included, inter alia, the difficulty in distinguishing those who are the innocent victims of mistake or misidentification from those who are fortunate to have escaped their just deserts. He also referred to the “interaction…of judicial and executive activity” and the consequent need for each of these two branches of the state to recognise and respect the proper role of the other. The submissions on behalf of the claimants on this question would effectively reduce the role of the Secretary of State to a purely administrative one. They would eliminate virtually all the power of judgment which we have concluded section 133 clearly confers on the Secretary of State and which it is appropriate for the executive branch of government to have.

Finally, we reject the submission that the majority of the Supreme Court in the Adams cases adopted the substitutionary approach for which the claimants contend. The approach of the majority is in fact inconsistent with the claimants’ submissions. Lord Phillips stated (at [36]) that “it is for the Secretary of State to decide whether the requirements of section 133 are satisfied, an exercise which is, of course, subject to judicial review” and (see [46]) “the decision whether there has been a miscarriage of justice within section 133 is not for the court but for the Secretary of State”. See also Lord Kerr at [169] and Lord Clarke at [209]. The detailed analysis by Lord Kerr of the facts of the cases of Messrs Macdermott and McCartney which Mr Cragg relied on in his written and oral submissions does not, in fact, support his broader contention. The Supreme Court was considering whether the only rationally correct conclusion about the disposal of their cases was that they fell within category 2. The fact that, in some cases, there is only one rational conclusion is not determinative of the nature of the court’s role in all cases.

ECHR Article 6

We turn to Article 6 of the ECHR. The claimants’ case on this question relied on decisions such as that of the Strasbourg Court in Georgiadis v Greece (1997) 24 EHRR 606, R (Wright) v Secretary of State for Health [2009] 2 WLR 267. It was argued that the cases relied on by Mr Strachan, in particular Tsfayo v United Kingdom (App No. 60860/00) (2006) 48 EHRR 457, and Tomlinson v Birmingham City Council [2010] UKSC 8, are not in point because they concern welfare benefits which are enjoyed as a matter of discretion and not of right: see Tomlinson’s case per Lord Hope at [22].

The considerations which led us to reject the submission that the role of the court is to determine de novo whether the Secretary of State has made a correct decision as to eligibility and qualification under the statute are relevant in considering whether the Secretary of State’s decision under section 133(1) qualifies as a determination of a civil right for the purposes of Article 6. They are also relevant in considering whether the level of scrutiny by the court in judicial review proceedings satisfies the requirements of Article 6. Tomlinson’s case involved two issues. The first was whether the entitlement to accommodation under section 193 of the Housing Act 1996 was a civil right. The second was whether the fact that the County Court did not have a full fact-finding jurisdiction when considering an appeal from a local authority meant that Article 6’s requirement that civil rights be determined by an independent tribunal was not satisfied.

Although the question to be addressed by the Secretary of State under section 133 is different, the guidance in Tomlinson’s case is of assistance. Lord Hope focused on the fact that, in that case, the award of accommodation was dependent upon a series of evaluative judgments by the Council as to whether the statutory criteria were satisfied and how the need for accommodation ought to be met: see [2010] UKSC 8 at [49]. He stated that those judgments do not give rise to “civil rights” within the autonomous meaning given to that expression for the purposes of Article 6. It was thus the nature of the judgments rather than that they were to be made in the context of social welfare legislation that was important.

We also accept Mr Strachan’s submission that Georgiadis v Greece is not of assistance to the claimants. In that case, the Strasbourg Court was considering a compensatory scheme under which the entitlement to compensation arose where the person who had been remanded in custody was subsequently acquitted, except where that person had, either intentionally or by gross negligence, been responsible for his own detention. There was therefore an entitlement unless disqualifying factors applied. Moreover, under the Greek legislation, the determination of the precise amount of compensation to be paid was a matter for the ordinary civil courts. That is not the case under the 1988 Act. The assessment of compensation for those who have been found to be eligible is undertaken not by a court but by an independent assessor. Similarly, Tsfayo v United Kingdom is of limited assistance to the claimants because the issue in that case was as to the entitlement to an amount of benefit that was not in the discretion of the public authority.

For these reasons, we doubt that Article 6 of the ECHR is engaged, and consider that, if it is, the right involved is not at the core of civil rights: see R (A) v Croydon LBC at [45] per Baroness Hale. We will, however, assume that it is engaged and consider whether, on that assumption, the existence of the process of a claim for judicial review by the High Court satisfies the requirement that the determination be by “an independent and impartial tribunal established by law”.

The decision of the House of Lords in Runa Begumv Tower Hamlets LBC [2003] UKHL 5 and the cases that have followed it (see R (A) v Croydon LBC at [40] – [45], R (Wright) v Secretary of State for Health [2009] 2 WLR 267 at [23] and Tomlinson v Birmingham City Council [2010] UKSC 8 at [51] – [56]) show that, in general, the composite procedure of administrative decision by the minister or public official designated by statute, together with access to the court, will be sufficient if the court has “full jurisdiction” over the administrative decision. “Full jurisdiction” does not necessarily mean jurisdiction to re-examine the merits of the case. All that is needed is jurisdiction to deal with the case “as the nature of the decision requires”: see Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23 at [87] and in Runa Begum’s case at [33].

The question in Runa Begum’s case was whether the appeal under section 204 of the Housing Act 1996 to the County Court on a point of law from the outcome of an internal review by a housing authority met Article 6’s requirement that there be access to an independent court with “full jurisdiction”. It was held that it did. Lord Bingham (at [7]) rejected the submission that there should be “anxious scrutiny” or “close and rigorous analysis”. Lord Hoffmann (at [49]) stated that it was open to a court “to adopt a more intensive scrutiny of the [decision-maker’s] conclusions of fact”, but did not discuss whether it should do so in that case or the circumstances in which it should do so. It was accepted by the court that an appeal under section 204 was in substance the same as the jurisdiction by way of judicial review.

The claimants’ submission is that this is one of the occasions when the scrutiny of the court must be more intense and more rigorous than is conducted by a judge determining an application for judicial review on a matter touching the human rights of an individual, i.e. on the enhanced ex parte Smith basis. This submission is in our judgment inconsistent with the principles expressed by the majority of the Supreme Court in the Adams cases, and the statements that we have summarised at [64] above. The nature of the issues that fall for consideration (see again Lord Bingham’s statement in Re MacFarland which we have summarised at [2]) have also led us to conclude that the process of a claim for judicial review satisfies the requirement of Article 6 that the determination overall be by an independent and impartial tribunal.

We now turn to the cases of the five claimants, their grounds for challenging the Secretary of State’s decisions refusing their applications for compensation, and the application of the principles we have set out to the facts of their cases.

Ismail Ali

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.

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.

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.

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.

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.

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.

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.

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.

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

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”.

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.

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.”

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.”

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.

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.”

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.

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.”

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.”

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.”

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.”

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.”

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.”

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”.

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.”

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.

Mr Cragg’s submissions on behalf of Mr Ali effectively start from the proposition that no jury, properly directed, could be sure that the woman recorded speaking on the telephone was not Ripa Begum. We agree that, if that proposition were established to the correct standard of proof, then the claimant would have a good claim for compensation. The simple critical questions in this case are therefore: (a) did the Secretary of State approach the case in the wrong way, and (b) was he irrational in concluding that the key proposition was not established with the necessary degree of confidence?

With due consideration to the arguments advanced by Mr Cragg, our view is that the decision of 23 August 2011 was a rational and proper conclusion. In this instance, the Secretary of State had the correct test in mind, following the decision of the Supreme Court in the Adams cases. The extracts from the letter which we have quoted make that sufficiently clear. On the crucial second question, it seems to us that the Secretary of State was entitled to say the claimant had not established to the necessary degree of confidence that no jury could properly convict on all the evidence taken together. Given the complications surrounding the creation of the relevant recordings and evidence from Ripa Begum that the voice was not hers and the limitations of the expert evidence, it appears to us that it might have been open to the jury properly to convict. It would have been a weak case advanced by the Crown and no doubt there would have been a high chance of acquittal. Had the expert evidence concluded that the voice recorded on the telephone was not merely consistent with that of Mrs Begum, but that there were distinctive features which identified the two as being the same, then it is likely the Secretary of State’s decision would and should have been different. However, if the first part of the test formulated by Lord Phillips in the Adams cases and reflecting section 133(1) is to be given proper respect, the decision by the Secretary of State was proper and this claim must fail.

Kevin Dennis

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.

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.

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

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.”

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”.

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.

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.

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.

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.

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.

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.”

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.

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.”

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.

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.

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.

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.

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.

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.

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.”

Ms Langdale then analysed this claimant’s case. She concluded that it would not fulfil the test in the Adams cases. In his skeleton argument, Mr Strachan relied on this as a reconsideration of the merits in the case, without prejudice to his contention that there was no obligation to reopen the matter.

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.”

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.”

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.”

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.”

Arguing in defence of this decision, Mr Strachan rejected the proposition that Mr Dennis can show he was innocent of murder. He maintained there is no arguable basis for challenging that decision now. We agree and consider this point does not require a further consideration, for reasons which should be obvious from the evidence recited above.

Mr Strachan next argued that this claimant cannot qualify because the CACD ordered a retrial. He submitted that, in effect, the newly discovered fact here (the unreliability of Mr Harrow’s evidence) arose before the appeal. In the absence of further new fact, the decision of the CACD must be taken to be a conclusive foundation for the decision by the Secretary of State that a proper conviction was still possible. The decision in the CACD was, he contended, founded on a review of the evidence. The CACD must be taken to have addressed the question of whether there was a case to answer in the absence of evidence concerning the possession of a knife, since the court stated in terms that the significance of Mr Harrow’s evidence was precisely that “it was the only evidence which showed directly that one of the appellant’s in the group had a knife”.

A further argument advanced by Mr Strachan, no doubt having in mind the approach to the rules of evidence adopted by Ms Langdale, was to suggest that:

“The trial judge’s ruling at the retrial was based upon technical rules of evidence which the Secretary of State is not required to apply to his own consideration of the test under Category 2 (for the reasons explained by Lord Phillips at paragraph 52 in the Adams judgment.”

We deal with these points in turn. We first record that in our view the Secretary of State’s refusal to reconsider this claim (as to which see [118] – [120]), was fully justified for the reasons we have summarised at [50] and to which we return at [204]. During the hearing, the Court fell under the misapprehension that in relation to this case, the Defendant advanced the reconsideration of the case as the decision to be relied upon, despite the position taken in writing. That misapprehension has been corrected. The Defendant is entitled to succeed on this ground.

However, since this case is intended to give guidance as to the proper approach to such cases, and since the review subsequently conducted by Ms Langdale is instructive, we proceed now to consider the merits of the way that exercise was conducted. In our view, there are very real problems with the approach taken by Ms Langdale. Her claim, supported in argument by Mr Strachan, that the Secretary of State’s decision can float free from the “technical rules of evidence” is, for the reasons given at [45] - [46], concerning. It is, moreover, not accompanied by any analysis of the evidence which overcomes the problem which led Judge Scott-Gall QC to remove the case from the jury. We reiterate that it is not satisfactory for the Secretary of State simply to decline to apply the rules of evidence on the grounds that they are “technical”. If it can rationally be said that a given judge excluded evidence in the exercise of judgment where a different judge might genuinely have reached a differing conclusion, that may be a sufficient foundation for the Secretary of State to choose to take a different view of the substance of a case. In our judgment, Ms Langdale did not carry out such an exercise.

The fact that the claimant can be shown to have formed a common purpose for violent disorder does not make him guilty of murder. The fact that, after the fatal stabbing, the claimant can be inferred to be part of a common purpose to get a gun and inflict potentially fatal damage with a firearm, does not make him guilty of this murder. This murder had already happened and was by means of a knife. There is nothing unduly technical about those propositions. Yet it is clear that Ms Langdale relied on the common purpose for violent disorder, and the possibility of inferring a common purpose to get a gun, in reaching her conclusion.

The essence of the problem in the case, analysed carefully by HHJ Scott-Gall QC in his extensive ruling, was precisely that, in the absence of evidence linking this claimant to the knife, there was insufficient evidence for a jury properly to convict. The absence of a link to the knife was at the heart of his reasoning. The injuries on the body of the deceased indicated that different blades had been used. In that context, the Crown argued that one or more must have been carried by those with whom the claimant was associated, as opposed to the other identified group at the scene, known throughout the trials as the “Rizla” group. However, it was precisely because the second trial judge found that such arguments fell short of the mark, that he rejected the Crown’s efforts to sustain the case. After the detailed consideration which a trial judge must give to these questions, perhaps particularly on a retrial after successful appeal, and which often cannot be given by the CACD before the remainder of the evidence has crystallised, the judge concluded that no reasonable jury properly directed could possibly convict. If the Secretary of State chooses to differ from such a conclusion, he must consider and apply the relevant legal principles and give reasons for his conclusions.

A further point arose in this case from the fact that this claimant’s conviction for violent disorder was never reversed, or even challenged. Mr Strachan originally argued that this precluded compensation in this case because of section 133(5A) of the Criminal Justice Act 1988, which we have set out at [22]. That provides that the conviction of a person who is to be retried “is not to be treated … as ‘reversed’ unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial”.

If this provision were to apply to this claimant, in our view it would provide a complete answer to his claim for compensation. There may in theory exist some room for argument as to whether there is an implied limit to the phrase “is acquitted of all offences at the retrial” in section 133(5A). If, in relation to the same episode, an individual was convicted of murder and of a parking offence, then it might be argued with some force that it would be wrong to withhold compensation for an otherwise accepted miscarriage of justice in relation to the murder conviction, because the parking offence remained undisturbed. We reach no conclusion as to whether such a limitation on the principle should be implied into the legislation, or as to the limits of any such implication. However, in our view it would be quite impossible to suggest that a conviction for violent disorder in relation to the episode giving rise to the murder charge should not be a complete bar to compensation.

Section 133(5A) was introduced into the Criminal Justice Act 1988, as an amendment, by section 61(5) of the Criminal Justice and Immigration Act 2008, and came into force on 1 December 2008. It follows that at the time when this claimant’s conviction was quashed by the CACD, this provision was not in force. Nor was it in force when his initial claim for compensation was lodged. The provision was in force at the time of the review in July 2012 by Ms Langdale. However, Mr Cragg points out that the applicability of s.133 (5A) is governed by transitional provisions set out in Schedule 27 paragraph 22(3) and (4) of the 2008 Act, which provide that s.61(5) “has effect in relation to any conviction quashed on appeal out of time in respect of which an application for compensation has not been made before the commencement date.” [Emphasis added.] Thus, he says, the provision cannot apply to this claimant, since his application for compensation was made on 6 October 2008, and thus before the commencement date of 1^st December 2008. It follows that, without more, this provision could not apply to Mr Dennis’s claim for compensation.

In his written argument on this point, submitted after the close of the hearing, Mr Strachan emphasised that the practice adopted by the Secretary of State has always previously been to take into account facts which emerge after the reversal of the conviction:

“If those facts relate to the alleged crime in question, in contrast to facts which relate to events that post-date the crime in question such as a later unconnected criminal convictions of a witness.”

The Secretary of State’s practice therefore is and has been to consider the “facts as they are now known”, meaning the facts as they are known at the date of the relevant assessment. Hence, the issue about the applicability of section 133(5A) throws up a broader issue about what the Secretary of State must take into account at the time of an assessment. The broad issue is whether it can be right that all factors affecting the substance of the decision which are known at the time of an assessment of a claim must be taken into account.

In our view, once all aspects of this matter are considered, viz. practicability, justice, and the wording of the 1988 Act, it is possible to give a simple consistent answer, within the limits set by the transitional provisions set out above. Whenever the Secretary of State comes to make an assessment of a claim for compensation under the Act, he should take into account all matters known at that time, capable of affecting the substance of the decision. So by way of example, where a conviction was quashed by the CACD and a claim for compensation made, which was followed in time by a confession to the crime by another, it would be wholly artificial on the part of the Secretary of State to decline to take that into account, on the ground that the decision maker was confined to facts known on the day when the CACD quashed the conviction, or indeed confined to facts known at the date when the claim was lodged. For practical purposes it may be quite rare for further relevant facts to emerge between the date of claim and the date of assessment but, if and when such a situation arises, the Secretary of State does in our view have an obligation to take into account what is known. Once a decision is taken, then the principles apply which we have already adumbrated earlier in the judgment.

In relation to the narrower issues bearing on this case, Mr Strachan argued that if s133(5A) did not apply, then s133(5) did apply. This, he said, meant that the “reversal” of the conviction should be construed as having taken place at the date the conviction was quashed by the Court of Appeal, not the date he was acquitted by direction of the judge in the course of his re-trial. From that point, he argues that the factual basis for any application for compensation should be confined to the factual position subsisting at the time of the “reversal”. With respect to Mr Strachan, we do not find these submissions convincing.

It is consistent with logic, and we believe with the language of the 1988 Act, that the relevant questions must be answered by reference to the facts known at the time of the assessment of the claim. This is not only rational and consistent with the broader approach, but seems to us to be the natural conclusion from the language of the statute, which provides that “the conviction is not to be treated(emphasis added) for the purposes of this section as “reversed” unless and until … (etc)”. The essential word in the provision is how the Secretary of State will “treat” a conviction which has been overturned. The “treatment” by the Secretary of State is something which can only arise when the matter is under active consideration. It is hard to see how this reading is capable of causing injustice or is to be thought disproportionate.

It follows for these reasons that, while we consider the approach taken by the Secretary of State in July 2012 is subject to valid criticism, and the language of the transitional provisions excludes this claim from the ambit of s133(5A), this application for judicial review fails.

Barry George

On 26 April 1999, the television presenter Jill Dando was murdered as she was about to enter her home at 29 Gowan Avenue, Fulham. She was killed by a single shot to the head. Forensic examination showed that a firearm had been pressed to her head when the killer discharged the weapon. The bullet and a 9mm cartridge case were recovered from the scene. Other findings by forensic scientists included firearm discharge residue [“FDR”] in the cartridge case and in the victim’s hair. The nature of this FDR was that it was percussion primer residue which does not degrade with time.

On 17 April 2000, as part of a wide investigation, the claimant’s flat was searched. A coat found hanging on the kitchen door, which was admittedly that of the claimant, was taken for forensic examination. A senior forensic science officer discovered a single particle of FDR in the internal right pocket of the coat. This particle matched the constituent elements of FDR found in the cartridge case and on the victim’s hair.

Before the FDR match had been established, the claimant was arrested and then on 29 May 2000 charged with the murder of Jill Dando.

The claimant was tried for the murder at the Central Criminal Court, in a long trial which began in April 2001 and culminated in his conviction for murder on 2 July 2001. The jury convicted by a majority of 10:1 and the claimant was sentenced to life imprisonment.

As was subsequently identified by the CACD in the second appeal of 2007:

“At trial the prosecution relied primarily on four categories of evidence. First, there was evidence which identified Barry George as being at the scene of the murder some four hours before it was committed and other evidence which, although not leading to a positive identification, was said to demonstrate such features as similarity to the positive identification as justified the conclusion that he was present at about the time it was committed. Secondly, the prosecution characterised his interview as containing repeated lies, in particular, as to his knowledge of an interest in Miss Dando. Third, it was alleged that he had made considerable attempts to create a false alibi for the time of the shooting. Finally, the Crown relied on the similarity of the FDR found at the scene of the crime with Miss Dando’s wound and the single particle of FDR in the pocket of Barry George’s coat.”

The claimant appealed against his conviction and, on 29 July 2002, the appeal was dismissed by the CACD. This appeal related primarily to the identification issue. The court concluded that the evidence of identification was properly admitted and was properly left to the jury for its consideration. In considering the evidence then before the court, the court also concluded that the FDR evidence was capable of supporting a prosecution case and that its weight was a matter for the jury.

Later in 2002, the Criminal Cases Review Commission (“the CCRC”) received submissions made on the claimant’s behalf. After a long and careful investigation the Commission decided on 19 May 2007 to refer the conviction to the CACD under section 9 of the Criminal Appeal Act 1995 on the ground that new evidence called into question the firearms discharge evidence at trial and the significance apparently attached to that evidence. It was this referral which led to the second appeal, see: R- v- Barry George [2007] EWCA Crim 2722.

The second appeal heard the evidence now said to bear on the FDR issue. It is not necessary for us to repeat the details of the court’s consideration. They concluded that the judge at trial had summed up in a way which represented a “model reflection of the evidence that had been called”. When considered objectively:

“That evidence conveyed the impression that the Crown’s scientists considered that innocent contamination was unlikely and that, effectively in consequence, it was likely that the source of the single particle was the gun that killed Miss Dando. In that respect their evidence at the trial was in marked conflict with the evidence that they have given to this court with the result that the jury did not have the benefit of a direction that the possibility that the FDR had come from a gun that killed Miss Dando was equally as remote as all other possibilities and thus, on its own, entirely inconclusive. In the light of the way in which Mr Keeley now puts the matter we have no doubt that the jury were misled upon this issue.”

The CACD went on to consider whether the verdict was safe. On this issue their opening remarks were as follows:

“We can deal with this issue shortly. The FDR evidence was not the foundation of the prosecution’s case against the appellant. Without pre-judging what might follow, in the absence of the FDR evidence there was circumstantial evidence capable of implicating the appellant; that much is clear from the detailed consideration given to the other aspects of the case by the Court of Appeal hearing the first appeal. [Counsel for the claimant] has accepted that proposition by conceding that, if this appeal succeeds, there should be a re-trial. We have to decide whether, had the evidence that we have heard been adduced at the trial, this might reasonably have affected the decision of the jury to convict …”

The CACD in the second appeal concluded that the conviction was indeed unsafe, quashed the conviction and the matter went off with an order, by consent, for a re-trial.

The claimant’s re-trial began on 9 June 2008. The FDR evidence was not admitted. The trial lasted 8 weeks. In the course of this trial the Crown relied on the identification evidence, evidence of lies told by the claimant, evidence as to a false alibi and evidence as to the claimant’s conduct in approaching women. In the course of the hearing, Mr Glen QC, who appeared on behalf of this claimant, informed us that there should have been, but was not, a submission of no case to answer at the conclusion of the prosecution case. He later corrected this. There was in fact such a submission made by leading counsel then appearing for the claimant. The submission was rejected by the judge, who concluded that there was a case against the claimant which could properly and justly found a conviction. The matter proceeded and, after nearly two days of deliberation, the claimant was acquitted by a unanimous verdict on 1 August 2008.

On 7 October 2009 the claimant applied for compensation pursuant to the Act. This was refused by a letter dated 15 January 2010. The Secretary of State concluded that the claimant was not “clearly innocent in the sense that innocence is genuinely demonstrated beyond reasonable doubt by new or newly discovered facts”. A further letter dated 3 March 2010 confirmed the decision observing that:

“Although the proposed claimant was acquitted at his retrial, this was by the jury’s verdict. It is clear that there was evidence on which a jury, properly directed, could have convicted the proposed claimant. Nothing emerged during the course of the retrial to demonstrate that the proposed claimant was clearly innocent of the offence.”

The claimant then sought permission to apply for judicial review and permission was granted by Collins J on 25 August 2010. Following the decision of the Supreme Court in the Adams cases, the Secretary of State reconsidered the claim for compensation in the light of the reasoning of the Supreme Court. The Secretary of State again refused the claim for compensation, a decision communicated to the claimant by letter of 28 June 2011. The decision letter addressed the broadened test but concluded that this claimant’s case did not fall within the circumstances identified by the court in the Adams cases. The letter quoted the appropriate passages from paragraph 52 of the second appeal judgment and continued as follows:

“Nevertheless, there remained evidence on which a reasonable jury, properly directed, could have convicted your client; the retrial proceeded beyond “half time” and your client was ultimately acquitted by a considered verdict. In those circumstances, it is clear that the new or newly discovered facts in your client’s case did not so undermine the evidence against him that “no conviction could possibly be based upon it”.

Consequently, the Justice Secretary’s decision of 15 January 2010 was correct on the facts of your client’s case, even though the slightly wider test now set out by the Supreme Court was not then applied.”

By permission of the Supreme Court, this claimant was allowed to intervene in the hearing which led to the decision in the Adams cases. However, in our view nothing turns on that intervention.

The submissions advanced on behalf of this claimant took as a starting point the proposition that the wording developed by Lord Clarke in the Adams cases at [217] should be applied to the claimant’s case. It was submitted this would provide a “workable formula for the jurisdiction of England and Wales”. We understand that to be a submission that, in a system based on jury trial, any judgement about whether a safe and just conviction might be reached must be a judgement about what a jury, properly directed, might do. As will already be evident, we have some sympathy with that proposition.

Mr Glen QC then submitted that the question in this claimant’s case was:

“When the second jury retired, did the Crown have a case on which a reasonable jury (properly directed) could have convicted the claimant for murdering Miss Dando?”

In our view this formulation is too broadly drawn. It fails to give any play to the statutory requirement, given considerable emphasis by the formulation of Lord Phillips in the Adams cases, that it must be clear, or sure, that no reasonable jury properly directed could convict. At [55] he stated that what was required was:

“that no [proper] conviction could possibly be based upon it.”

The distinction is underscored by the remarks of Lord Hope in the Adams cases at [104], where he expressly addressed the implications of a re-trial, and an acquittal at re-trial. He concluded that such an acquittal “will not be enough”. According to his approach, it is only if:

“new facts emerge during the retrial process that have the effect of showing conclusively that the person was innocent or that the prosecution should never have been brought they can be taken into account, even though they emerged after the date when the conviction was reversed by the Court of Appeal.”

However, even the formulation proposed by Mr Glen would mean that this case falls outside Category 2 as identified in the Adams cases and out with the scheme for compensation, unless Griffith Williams J was in error in permitting the case go to the jury. It appears to us Mr Glen did not quite accept this. As we have noted he was handicapped by operating for a period under the misapprehension that leading counsel at trial had not sought to have the case stopped at “half time”. At one stage, he appeared to suggest that the case might have been left to the jury as a consequence of the high level of publicity it had achieved.

Further submissions were made on behalf of this claimant based on the changing nature of guidance given to officials dealing with the statutory scheme and the ex gratia compensation scheme that has operated in recent years. It is beyond doubt that this guidance has become more restrictive, reflecting the abolition of the ex gratia scheme and successive judicial pronouncements as to the interpretation of the statutory scheme. However, in our view this takes this claimant nowhere. No question arises of any established legitimate expectation capable of affecting the matter. To be fair, Mr Glen did not make any explicit claim to that effect.

He did submit that the evidence left to the jury was weak and that although four planks of evidence were advanced by the Crown as we have identified above, in fact there was only one: the identification by the witness Mayes. He pointed to the careful direction of the trial judge emphasising the importance of that specific piece of evidence and the caution which should be shown by the jury if they were unable to be sure of the validity of that identification.

Yet in the end, there was no submission formulated by Mr Glen capable of persuading us that the trial judge was wrong to leave the case to the jury. In our view, this has the consequence that this claimant’s case inevitably fails the test even as formulated by Mr Glen. There was indeed a case upon which a reasonable jury, properly directed, could have convicted the claimant of murder. That was the effect of the judge’s ruling on the submission made to him.

It follows that in our judgment the Secretary of State was entirely justified in the conclusion he reached. For those reasons the claimant’s case fails.

Ian John Lawless

On 20 February 2002 in the Kingston-Upon-Hull Crown Court, the claimant was convicted of murder before Grigson J and a jury, by a majority verdict of 10 to 2. He and his co-accused Gary Lawson, who was convicted by unanimous verdict, were sentenced to the mandatory term of life imprisonment.

On 16 June 2009, following a reference by the CCRC, the CACD considered the claimant’s case and concluded that his conviction was unsafe, see: R v-Lawless [2009] EWCA Crim 1308.

The victim of the murder was Alfred Wilkins, a man of 67 years of age. Three months before his death he had been tried and acquitted of indecent assault on an 8 year old girl. Subsequent to his acquittal, Mr Wilkins had been subjected to a process of harassment. His house windows had been smashed, graffiti had been daubed on his property, all of which was presumed to arise out of the accusation of indecent assault. On 1 February 2001, he was attacked in his home by two intruders. Then on 9 February, accelerant was poured through the letterbox of his home and the house set alight. As a result, both Mr Wilkins and his dog died.

Charges were laid against a number of people who lived locally. Gary Fairbanks and his son Dean Fairbanks lived nearby. Gary Lawson often visited their home. Chantelle Day was Lawson’s girlfriend and the claimant was also a friend of the Fairbanks. Lawson, Day and Fairbanks were charged with conspiracy to cause grievance bodily harm to Mr Wilkins. Dean Fairbanks was acquitted on the direction of the trial judge but Lawson and Day were convicted of that offence. Gary Fairbanks was indicted with incitement to cause grievous bodily harm and murder. He was acquitted of both those offences. Chantelle Day was indicted with offences of inciting Lawson to murder Mr Wilkins and to set fire to his home. She was acquitted of those offences on the direction of the trial judge. On Count 6 of the indictment, Lawson and the Appellant alone were charged with murder. Further counts on the indictment did not relate to the claimant and addressed matters subsequent to the fire.

The Crown’s case against the claimant was that he had acted as a lookout whilst the murder was being committed. The evidence on which he was convicted was that he had made a number of admissions of participation in the killing as a lookout and that he behaved in a way after the event which was consistent with his admissions being true. There was no forensic evidence to link him with the fire in which Mr Wilkins died. Nor did anyone purport to have seen anything relevant on the night when the fire was started.

The evidence of the admissions is recited in the judgment of the CACD: [2009] EWCA Crim 1308 at [8] – [17]. It is not necessary for us to repeat all of that detail. Most of the evidence of admissions came from friends and acquaintances of the claimant. In many cases those who gave this evidence also gave evidence which indicated the admissions might not be reliable. Mick Bennett, a fellow regular at the Pestle and Mortar public house, described the claimant as “a bit of an idiot, a fool” and someone who liked attention and invented stories to gain attention. The claimant’s daughter, Laura Lawless, gave evidence that her father was “a bit of a drunk” and someone who talked nonsense when he was drunk. He would say things which were untrue in order to appear clever. Similar evidence was given by Glenn Barratt who described the claimant as “a likeable character who liked to say things that were untrue in order to get attention”. Very similar accounts came from Deborah Howard and Andrew Waller. In many instances, the witnesses associated the claimant’s exaggerated stories with drink.

The situation was somewhat different in relation to the evidence from David Gough, a serving prisoner who had been on remand with the claimant at HMP The Wolds. Mr Gough gave evidence that the claimant had admitted to him that he had kept watch whilst two others set fire to the house. On this account the claimant had observed that there was not much evidence against him, that he had made a few admissions “but because he was drunk at the time it did not count for anything”. In a subsequent conversation Mr Gough recounted admissions from the claimant that were somewhat inconsistent with his earlier account, in that on this occasion he said only one person had set fire to the flat.

In extended interviews with the police, the claimant consistently denied any involvement in the events leading to the death. To start with he also denied to the police that he had made admissions to others, but he went on to suggest later in interview that he might have made false admissions when drunk.

In evidence at the trial, the claimant denied some of the admissions alleged against him and acknowledged some others. He agreed that he said stupid things when he was drunk and boasted about things he had not done. He denied discussing the case with David Gough.

There was no psychiatric or psychological evidence called before the jury at the trial. The appellant had been assessed by a psychiatrist whilst in custody on remand. The psychiatrist provided an opinion that neither at the time of the offence nor presently was the appellant suffering from any mental illness or disorder which would have a bearing on the conduct of the defence. No consideration was given at the time to instructing a psychologist.

As the CACD indicated, the issue for the jury was the reliability of the confessions:

“It was clear on the evidence at trial that the appellant was prone to make up stories in order to gain attention. The issue for the jury was whether the admissions made with respect to the murder were examples of that behaviour or were true confessions to actual participation in the offence by the appellant. The jury were directed in clear and correct terms on that issue by the trial judge.”

An initial appeal, advanced on relatively narrow grounds, was dismissed in February 2003. In their consideration of the case before referral, the CCRC instructed Professor Gisli Gudjonsson, Professor of Forensic Psychology at the Institute of Psychiatry, King’s College, London. Professor Gudjonsson produced three reports. His findings are conveniently summarised in the Statement of Reasons produced by the CCRC and quoted by the CACD:

“56.

Professor Gudjonsson noted in his first report that Mr Lawless was a known alcoholic who might consume a large amount of alcohol without being visibly drunk to others.

57.

Professor Gudjonsson found that Mr Lawless:

i)

had an IQ of 80, suggesting that he was functioning in the Low Average range of intellectual ability;

ii)

scored low on all the suggestibility tests indicating that he is highly resistant to leading questions and interrogative pressure and is not likely to accept suggestions ‘on trust’;

iii)

had a high level of compliance, indicating that he is motivated to please others and avoid conflict and confrontation; compliance is different from suggestibility in that it does not relate only to questioning; a compliant person goes along with a proposition he knows he does not agree with, while a suggestible person comes to accept the proposition as correct;

iv)

was acquiescent within normal limits, but at the high end of the normal limits; acquiescence indicates a tendency to answer questions I the affirmative irrespective of the content; like suggestibility, acquiescence involves responses to questions but the questions are not leading;

v)

was an emotionally unstable extrovert, who was prone to addiction and anti-social behaviour;

vi)

had a number of serious and long-standing psychological problems including alcohol dependence, personality disorders (primarily schizoid, dependency and passive-aggressive) and anxiety and mood disturbance;

vii)

had a very high Disclosure and Debasement scores which are best construed as a pathological need for attention;

viii)

had emotional and personality problems which made him psychologically vulnerable to uttering inappropriate and unfounded comments for the purpose of seeking attention;

ix)

had a pathological dependency on other people’s attention which, in Professor Gudjonsson’s view, was key to understanding Mr Lawless’ alleged comments about being involved in Mr Wilkins’ death.

58.

Professor Gudjonsson also expressed the view that the fact that Mr Lawless had apparently expressed distress, and even cried, whilst claiming involvement in the murder of Mr Wilkins should not be viewed as evidence of his guilt; it was likely that the expression of distress was part of his pathological attention-seeking behaviour.

59.

Professor Gudjonsson concluded that it would be unsafe to rely on Mr Lawless’ alleged self-incriminating comments as evidence of his involvement in the murder of Mr Wilkins.”

The CCRC also obtained some evidence from HMP The Wolds suggesting that it was at least possible that the claimant had had access to alcohol around the time of the alleged confessions to Mr Gough, the effect of which was the suggestion that no jury could be sure that the confession to Gough, if made, was not also associated with alcohol.

Following the referral of the case to the CACD, the Crown instructed a consultant psychologist to review Professor Gudjonsson’s reports and all the other available material. In her report, Mrs Mechthild Jenkins largely confirmed Professor Gudjonjsson’s findings. She too summarised her conclusions, in the following terms:

“The psychological assessment shows that Mr Lawless suffers with a pathological need for attention. His test-taking attitude showed a tendency of over-reporting psychopathology, which appears to be a ‘cry for help’ and resulted in some of the tests being rendered invalid. However, the valid assessment results show that Mr Lawless presents with severe psychopathology, including personality disorders.

Mr Lawless’ psychological difficulties appear to be very likely long-standing and were probably already present at the time of his arrest and conviction. However, in the absence of a psychological assessment, conducted at that time, this cannot be concluded with certainty.

It has been shown that Mr Lawless’ pathological need for attention is also evident in the information given by Mr Lawless during the psychological interviews as well as the case documentation, particularly the witness statements. Mr Lawless’ coping strategies, alcoholism and general lifestyle suggest that significant psychological difficulties and his need for attention were already present before the time of his arrest.

It was concluded that Mr Lawless’ alleged admissions could be false admissions as his psychological difficulties and need for attention might render him vulnerable to making false confessions. In view of this it is deemed unsafe to rely on his alleged self-incriminating admissions as sole proof for his involvement in the murder of Mr Wilkins.”

In the light of all of the evidence, the Crown concluded that they could not and should not resist the appeal. The CACD endorsed this view. There was no application for a retrial. In the course of their conclusions as to the safety of the conviction the CACD said this:

“We are … satisfied that if the jury had heard that evidence at trial it might have affected their assessment of the reliability of the various confessions made by the appellant and their verdict might have been different. We note in particular, since this was a feature of [R –v- Flanagan [2005] EWCA Crim 2286] … that both psychologists are evidently of the view that the psychological conditions described by them are conditions from which the appellant suffered (or probably suffered) at the time when the confessions in question were made. We have also borne in mind that the verdict in relation to the appellant was reached by a majority of 10:2, and only after a very long period of deliberation.”

The claimant’s conviction for murder was quashed on 16 June 2009. On 8 July, the claimant submitted an application for compensation for wrongful conviction. This was refused in a letter of 17 December 2009. After reciting the relevant passages from the Criminal Justice Act 1988 and authority including Mullen, Clibery, Boyle, Allen formerly Harris, and Siddall, the Secretary of State gave his reasons in the following terms:

“The Justice Secretary has carefully considered papers in your client’s case, but has concluded that this test has not been met. In its judgment quashing your client’s conviction, the Court of Appeal stated that it was “satisfied that if the jury had heard the evidence at trial it might have affected their assessment of the reliability of the various confessions made by the Appellant and their verdict might have been different” (paragraph 35). The Court did not provide any indication that the new medical evidence obtained by the CCRC proved clear innocence, only that the jury might have acquitted. There was no finding by the Court that the new medical evidence had made the confession evidence clearly untrue; rather that a jury might have been more likely to disbelieve it.

The Justice Secretary is not therefore of the opinion that your client’s conviction was reversed on the ground that a new or nearly discovered fact showed beyond reasonable doubt that there has been a miscarriage of justice, as required by section 133 of the Criminal Justice Act 1988, and he is not prepared to authorise an award of compensation.”

This decision letter followed advice to the Minister of 2 December 2009, parts of which are worth emphasising. The Minister was advised that the CACD had not stated that the Crown’s case as a whole was undermined by the new evidence, or that Mr Lawless was innocent. The Minister was told there was no clear finding by the court that the new medical evidence meant the confession evidence was untrue; rather the inference was simply that a jury might have been more likely to disbelieve it. However the advice went on as follows:

“That said, his confession to a number of prosecution witnesses was almost the only evidence against Mr Lawless, and thus if a jury had not believed the confession evidence it follows thatthey would have acquitted [emphasis added]. The CPS did not oppose the appeal and did not seek a retrial. The CPS advised there were two reasons for not seeking a retrial – firstly, the length of the sentence served (almost 7½ years), and secondly that the confession evidence was rendered “unreliable” by the new expert evidence and that accordingly “there would be nothing further to put to a jury in any retrial”. The second point suggests that the CPS considered that the test had not been met for continuing with the prosecution, namely whether there remains a realistic prospect of conviction. It can be inferred that the CPS considered that a fresh jury would be more likely than not to acquit. That is not, of course, necessarily the same as concluding that the applicant is “clearly innocent”.

The Court of Appeal’s judgment allowed the possibility that a jury could have found the confessions reliable; it did not say that the evidence should have been excluded as inadmissible. In light of this and all the circumstances summarised above, we are satisfied that there are sufficient grounds for concluding that clear innocent has not been established, and the application for compensation should therefore be refused.”

Following the decision of the Supreme Court in the Adams cases in May 2011, the Secretary of State reconsidered the claim. In the second decision letter dated 19 August 2011, the Secretary of State again refused to claim for compensation. Accepting that the test had been clarified by Lord Phillips, the Secretary of State went on to observe:

“However, the test remains a demanding one: where the new or newly discovered fact which formed the basis of the reversal of the Applicant’s conviction does not show beyond reasonable doubt that he was innocent of the offence of which he was convicted, compensation is payable only if that fact so undermines the evidence against him that it is beyond reasonable doubt that no conviction could possibly be based upon it.

The Justice Secretary maintains that your client’s case does not fall within the circumstances identified by the court. Whilst there was new psychological evidence, and the impact that such evidence might have had on the jury’s verdict had it been available at the time was considered by the Court of Appeal, it remained that your client might nevertheless have been properly convicted … There was no finding by the Court of Appeal that the new psychological evidence had made the confession evidence clearly untrue, rather that a jury might have been more likely to disbelieve it.”

In his admirably succinct submissions to us, Mr Stanbury for this claimant suggested that the Secretary of State’s decision was wrong in law and wrong on the facts. He is clear that this claimant’s case is not a Category One case. Lawless has not shown that he is innocent of the crime. However, Mr Stanbury did suggest that this case falls firmly in Category 2: it is clear beyond reasonable doubt that no jury could properly convict. The language used by the CACD does not state that conclusion explicitly, because such a statement is not relevant to the question faced by that court: is the conviction unsafe? However, Mr Stanbury emphasised that everything about the case demonstrates to the necessarily high standard that there could be no just or proper conviction on the evidence as now known. Both sides’ experts agree that the confessions are unreliable. The advice to the Minister in effect concedes, without the confessions, there is no case. Additionally, Mr Stanbury submitted that the second decision letter reveals a confused application of the test as adumbrated by Lord Phillips:

“There was no finding by the Court of Appeal that the new psychological evidence had made the confession evidence clearly untrue, rather that a jury might have been more likely to disbelieve it.”

Such an approach is apt to exclude a claimant from Category 1 of the Adams cases and is inconsistent with a proper consideration of Category 2.

Mr Strachan made a number of points in reply. In addition to his more general points, he submitted that it was a matter for the Secretary of State’s judgment, properly directing himself, as to whether or not the new psychological evidence so undermines the evidence against Mr Lawless that no conviction could possibly be based upon it. The Secretary of State suggested that he correctly applied his mind as to whether or not Mr Lawless might nevertheless still have been properly convicted, notwithstanding the psychological evidence. The Secretary of State was entitled to reach the view that he could. The CACD’s ruling was not determinative. The confessions had still been made. There was no suggestion by the CACD that those confessions would not still have been admissible. Both the CACD and the CCRC “implicitly recognise” that it would have been for the jury to make their own assessment of the reliability of those confessions in the light of the psychological evidence that had been obtained. The issue for the jury would have been whether the admissions were examples of Mr Lawless making up stories to gain attention or true confessions. It would have been open to a jury, properly directed, to conclude that they were sure the admissions were true confessions.

There was no suggestion that the confessions made by Mr Lawless were made as a result of any ill-treatment which could have sounded under section 76 of PACE. The confessions were clearly made to a number of individuals and it was not irrational on the part of the Secretary of State to conclude that the admissions might have been admissible and would not have been excluded under sections 76 or indeed 78 of PACE. This case was not analogous to the cases of MacDermot and McCartney which were decided together with that of Adams. There was a correct understanding by the Secretary of State of the test stated by Lord Phillips and proper consideration had been given to all relevant circumstances, including the decision of the CPS not to pursue a retrial. The prosecution had in fact explained that there were two concomitant reasons that it did not seek a retrial. The first was that the claimant had already served over 8 years of a tariff of 10 years under his life sentence. The second was the assessment by the CPS that because of the Crown’s own expert evidence “there would have been nothing further to have put before any jury in any retrial”. In the submission of Mr Strachan, this did not bind the Secretary of State in the view he took of the case and was consistent with a rational view on the part of the Secretary of State that there could still have been the possibility of a just conviction based on the confession evidence and hence that the case fell outside Category 2.

We turn to our conclusions. We start by observing that the position of Mr Lawless differs from that of the other claimants, because a person who makes a false confession, or whose confessions cannot safely be relied on because of his psychological vulnerability and pathological attention-seeking behaviour, can be said to have in some sense brought the prosecution and conviction upon himself. Section 133(1) provides that the Secretary of State is not liable to pay compensation where “the non-disclosure of the unknown fact is wholly or partly attributable to the person convicted”. In the light of that, it might be thought that the Secretary of State’s decision that there was no miscarriage of justice in Mr Lawless’s case is not outwith the range of decisions a reasonable Secretary of State could make. During the course of his oral submissions Mr Strachan sought to justify the decision in this way.

There are two problems with this approach. The first is that this was not the reason given by the Secretary of State for his original decision in the letter dated 17 December 2009, or for the decision in the letter dated 19 August 2011, made after he had reconsidered the claim in the light of the decision in the Adams cases. The second is that it involves disregarding Mr Lawless’s psychological makeup and the non-disclosure of his tendency to make false confessions and treating them as “wholly or partly attributable” to him. The question is whether that reflects the autonomous meaning of “miscarriage of justice” in Article 14(6) of the ICCPR and section 133.

As we have already indicated, it is important not to lose sight of the fact that, notwithstanding the autonomous nature of the concept in section 133, it is also necessary to consider whether the new fact “so undermines the evidence against the defendant that no conviction could possibly be based on it”. Mr Lawless’s confessions to a number of prosecution witnesses were effectively the only evidence against him. Focusing on the fact that in lay terms he might be said to have brought the prosecution and conviction upon himself is to disregard or marginalise the uncontroverted evidence of his psychological makeup and pathological behaviour or to assume that the non-disclosure of the tendency of such a person to make false confessions is nevertheless inevitably “wholly or partly attributable” to that person. In this case, the claimant had all along claimed he had such a tendency.

Despite the elegance with which Mr Strachan sought to defend the decision of the Secretary of State, we have concluded that the decision was in error. The view taken by the Crown that there should be no application for a retrial in this case was correct. The agreed psychological analysis had become available many years earlier. Once all expert evidence agreed that the confessions were unreliable, no jury could properly convict on the basis of such admissions. This was not a fresh issue; it was the central issue at first instance. What was new was the joint view of the experts, accepted by all parties and by the CACD, that the confessions were unreliable. In the absence of the confessions there was simply no case. The Secretary of State should have concluded that this was a case where he was sure no jury could properly convict. He failed to consider whether, in the light of Mr Lawless’s psychological makeup and pathological behaviour, it is proper to regard the non-disclosure of his tendency to make false confessions as “wholly or partly attributable” to him.

A supplementary point is that some of the wording in the second decision letter, of 19 August 2011, appears to us to portray a degree of confusion, giving rise to a concern as to whether the writer was not in fact harking back to the test as formulated before the Supreme Court decision in the Adams cases.

For these reasons, the Secretary of State’s decision to refuse compensation in this case is quashed and Mr Lawless’s entitlement to compensation must be reconsidered by the Secretary of State in the light of this judgment.

Justin Tunbridge

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.

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.

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.”

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.

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.

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.”

It will be evident that the CACD were confining their conclusion to the question of the safety of the convictions and were not concerned with “the truth of the matter”.

Mr Cragg for the claimant essentially submitted that no jury, properly directed, could possibly reach a conviction if they were to hear all this evidence. He maintained this case falls into Category 2 and is compensatable. The Secretary of State argued strongly to the contrary. Mr Strachan submitted that a reasonable jury properly directed could disbelieve Miss G and accept the account of KK. He stated that a degree of corroboration for KK’s account could be drawn from the presence of the claimant’s DNA on her cardigan, in a position consistent with her account rather more than the claimant’s.

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.”

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.

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.”

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 newinformation 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.”

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.”

Essentially, two points arise in this case. Firstly, was there an obligation on the part of the Secretary of State to reconsider the application for compensation following the Adams cases? Secondly, if there was such an obligation, then should this claim for compensation have succeeded in the light of the principles laid down in the Adams cases?

As is made clear in the correspondence quoted above, the Secretary of State’s approach was to decline to reconsider previous decisions to refuse compensation, except where further new or newly discovered fact came to light, not previously available or presented to him. Mr Strachan submitted that his client was entitled to adopt such an approach, and to conclude that the decision in the Adams caseson the legal meaning of section 133 is not a new or newly discovered fact and thus does not require the Secretary of State to reopen all previous decisions as to compensation.

Mr Strachan relied on R (Bateman and Howse) –v- SSHD (1994) 7 Admin LR 175, 182. In that case a parallel problem arose. Mr Bateman had had his convictions reversed on a reference to the CACD and he claimed compensation. In the Divisional Court, refusing to quash the decision of the Secretary of State, Leggatt LJ stated:

“The suggestion that the reversal of a conviction on the ground that evidence was wrongly admitted, or on the ground that the bylaw under which the charge was brought was ultra vires, constituted a new or newly discovered fact is simply wrong in law. There was no new fact; there was merely a decision on a point of law …” (Transcript page 6)

In the face of continued argument on the point in the Court of Appeal, Sir Thomas Bingham MR expressly agreed with Leggatt LJ. The Master of the Rolls accepted that Mr Bateman had established what would in common parlance amount to a miscarriage of justice. He said this:

“ … I hasten to assure Mr Bateman that … I have no intention whatever to undermine the effect of the quashing of his convictions. He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for 3½ years when he should not have been convicted or imprisoned at all … The man in the street would regard that as a miscarriage of justice and so would I. But that is not in my judgment the question. The question is whether the miscarriage of justice from which Mr Bateman has suffered is one that has the characteristics which the Act lays down as a precondition of the statutory right to demand compensation. That, therefore, is the question to which I now turn. Both Miss Howse and Mr Bateman argue that there was, in each of their cases, a new or newly discovered fact. Miss Howse points to the overruling of the regulations as ultra vires as the new or newly discovered fact in her case. Mr Bateman points to the ruling that the evidence should not have been admitted. In each case the ground of the reversal was not in my judgment the discovering of a new or newly discovered fact, but a legal ruling on facts which had been known all along.” (Transcript page 6).

On that basis the Master of the Rolls specifically adopted the words of Leggatt LJ and dismissed the claims.

It does not appear to us that Mr Cragg was in fact arguing that the revelation of “an error of law” in the Adams cases constituted a new fact, so as to compel a reconsideration by the Secretary of State pursuant to the wording of section 133(1). Mr Cragg certainly argued that the evidence of Miss G constituted a “newly discovered fact” when the application for compensation was made in 2008, and at the time when Mr Tunbridge’s conviction was reversed by the CACD. If that is correct, then the question of whether an application for compensation falls to be reconsidered in the light of the Adams cases turns on general public law principles and not on the wording of section 133(1).

Here, the Secretary of State argued that such a public law decision as this is valid and effective, unless and until it is set aside by a court of competent jurisdiction. Mr Strachan relied upon R –v- Hertfordshire County Council, ex parte Cheung & Another (1986) The Times, 26 March 1986, a transcript of which has been supplied to the court. That case was concerned with mandatory awards for academic study. In the grant of awards, the local authority concerned had no discretion to withhold an award from those who qualified. The applicants were qualified for the awards but were refused them. The error came to light four years after the decision, following upon the House of Lords judgment in R –v- Barnet LBC, ex parte Shah [1983] 2 AC 309.

After the decision of the House of Lords, the Department of Education and Science wrote to all local education authorities informing them of the effect of the judgment but stating it was for the authorities:

“… to decide whether or not to reopen cases which they think, in the light of the House of Lords judgment, they may have wrongly refused a student a mandatory award by applying an incorrect [legal test] the department suggested to the local authorities that the guiding principles should be the requirement of good public administration and the desirability of reviewing cases where the courts would be likely to grant leave for an application for judicial review without forcing the student first to have recourse to the courts.”

A relevant date in that case was the day when leave to appeal was first given in the test cases. The Department suggested that students who were refused an award less than 3 months before leave to appeal was first given (28 January 1980) “would have a stronger case than those whose award was refused earlier”. It would perhaps be evident that the three month period was indicated by the Department with the time limit for judicial review in mind.

However the Department went on to suggest that it would be “consistent with good public administration to treat all students who started their course in the autumn of 1979 similarly”. See R –v- Hertfordshire County Council, ex parte Cheung & Another page 2.

Following that indication from the Department, when the applicants in ex p Cheung and Another applied in 1983 for “retrospective consideration” of their entitlement to the award which they had been denied in 1978, the applications were refused by the relevant local authorities, which adopted the policy suggested by the Secretary of State. The applicants sought judicial review both of the original 1978 and of the 1983 refusals. Leave to apply in relation to the 1978 refusals was refused and this refusal was affirmed by the Court of Appeal in March 1985. However, leave to apply was granted in relation to the 1983 decisions. At first instance, the 1983 decisions were quashed. The education authorities were ordered to reconsider their 1983 applications according to law. The education authorities and the Secretary of State appealed that decision.

Sir John Donaldson MR set out the ratio decidendi of the Court’s decision in ex p Cheung and Others as follows:

“”Order, counter order, 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 express statutory provision, by the exercise of the court of discretion.

I wholly accept the proposition that if a test case is in progress in the public law court, others who are in a similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions. I say this for two reasons. First, it would strain the resources of the public law court to breaking point. Second, and perhaps more important, it is a cardinal principal of good public administration that all persons who are in a similar position should be treated similarly. Accordingly, it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as a complete justification for a late application for judicial review.” R (Cheung and Others) transcript page 5.

The Court went on to set a “limitation period” in the exercise of its discretion, which sought to produce consistency but with an eye to the practical considerations of public administration on the facts in that case.

We consider that the approach in Cheung was correct. A three month “limitation” period is appropriate. Hence, only where the earlier, challenged decision was made within 3 months of the decisions in the Adams cases, would it be appropriate to accede to the challenge. Hence, this case fails on the grounds of time.

If the Secretary of State was obliged to reconsider the claim for compensation following the decision in the Adams cases, should this claimant have succeeded? We have indicated above the position that Mr Cragg took on his behalf. He submitted that no jury properly directed could possibly reach a just conviction if they were to hear all the evidence in the case, including that of Miss G. We disagree. Having considered all the evidence, it appears to us that a reasonable jury properly directed might well disbelieve Miss G and accept the account of KK. That is a perfectly possible outcome, even without reference to any supposed corroboration for KK’s account in the form of the claimant’s DNA on the cardigan. Certainly, it would not be irrational or unreasonable on the part of the Secretary of State to conclude that he could not be sure an acquittal would be the outcome of a trial before a reasonable jury, properly directed. This would obviously be a case where the jury’s conclusions would turn on their view of the credibility of the two witnesses whose evidence was in conflict.

For these reasons, we would in any event reject the challenge to the decision in this case.

For the reasons we have given:-