Andukwa, R (On the Application of) v Secretary of State for Justice

On 26 October 2006 the applicant pleaded guilty to an offence of possession of a false identity card with intent and was sentenced on that day in the Crown Court to a term of six months’ imprisonment. Some years later it was identified that he all along may have had a good defence under s.31 of the Immigration and Asylum Act 1999: a point not appreciated by anyone at the time. The Court of Appeal, on a reference by the Criminal Cases Review Commission (“CCRC”) agreed. It found, by judgment delivered on 30 July 2013, that “quite probably” such a defence, had only it been raised at the time, would have succeeded. It quashed the conviction. No retrial was sought or ordered.

The applicant, by application lodged on 9 August 2013, sought compensation. He relied, and relies, on s.133 of the Criminal Justice Act 1988 for that purpose. By a decision letter dated 25 October 2013 and then by further decision letter dated 6 January 2014 the Secretary of State for Justice refused his application. The applicant now challenges that refusal by judicial review proceedings.

The principal, although not only, issue raised in these judicial review proceedings is by reference to the application of s.133 of the 1988 Act to the circumstances of this case: in particular, and putting it in a short-hand way, whether the late appreciation that the applicant all along had a potentially complete defence to the charge is to be regarded as a “new or newly discovered fact” for the purposes of the section. If it is so to be regarded, there is then a question as to whether the decision of 6 January 2014 was flawed.

The background facts can be relatively shortly stated.

The applicant is a national of Cameroon. On 29 September 2006 he was stopped at Manchester Airport attempting to board a flight to Canada. He was in possession of a passport in someone else’s name. On arrest he claimed asylum. In interview he said that it had been necessary to leave Cameroon because of his fear of persecution on account of his political activities. He was a member of the SCNC, a political grouping that promoted the rights of the English speaking minority in Cameroon. With the assistance of agents, paid by his mother, he was helped to leave the country. The agents provided all the documents. He had travelled with an agent to Heathrow, flying via Nairobi airport (which he had not left). He arrived at Heathrow in the early hours of 28/29 September 2006. He was taken to a house in London where he stayed the night. He was then driven, with another agent, to Manchester Airport for a flight to Canada. He had been provided with a further passport in someone else’s name. He was told that Canada was to be his final destination and that he was to apply for asylum there.

The version of events which he gave at the time accorded with what he was subsequently to say, in amplified form, in various witness statements.

Experienced and reputable solicitors acted for the applicant in the criminal proceedings; and counsel also appeared on his behalf in the Crown Court at plea and sentence. In his (undated) Proof of Evidence prepared in the course of the criminal proceedings the applicant had given a full account of all that happened. As to what happened in Cameroon he gave clear details of interrogation, torture and abuse because of his political affiliations. He described in detail how his mother arranged for his departure. He further described in detail the circumstances of his travel to Heathrow and then in due course to Manchester.

At no stage was the applicant advised that he might have any defence to the charge of possessing a false identity document with intent contrary to s.25(1) of the Identity Cards Act 2006. The solicitors’ attendance note of the hearing in the Magistrates’ court, where the intention to plead guilty was indicated and the matter committed to the Crown Court, makes no reference to any advice on any defence, whether under s.31 of the 1999 Act or at all.

In the Crown Court a Pre-Sentence Report dated 23 October 2006 was available. That report also included reference to the applicant’s account of having been persecuted in Cameroon and his fleeing the country for that reason. His version of events as to his journey – which was said to concur with that contained in the prosecution case summary – was also set out. Presumably, although we have seen no transcript, those facts would have been summarised by the prosecution to the judge in the Crown Court at the sentencing hearing on 26 October 2006 and also deployed, as appropriate, by counsel in mitigation. There was no appeal thereafter.

Neither counsel nor solicitors, when subsequently approached by the CCRC, had any direct recollection of events. The solicitors provided their file, which contained no reference to s.31 of the 1999 Act. In a subsequent letter to the CCRC from the solicitors, however, it was suggested that such a defence would not have been available in the circumstances of the case as recounted by the applicant.

In due course, the applicant’s claim for asylum was rejected by the Home Office on 8 June 2007. There was an appeal. By determination promulgated on 7 December 2007 the appeal was allowed by the Asylum and Immigration Tribunal. The judge accepted the applicant’s evidence as persuasive and credible. It was accepted that he had been a political activist in Cameroon, that he had experienced “persecutory ill-treatment” whilst detained and interrogated there, and that there was a real and well-founded risk of further persecution if he were returned to Cameroon. The appeal was allowed both on asylum and on human rights grounds. Subsequently he has been granted indefinite leave to remain.

The applicant is a man of some education: he was a biology teacher in Cameroon. He had, and has had since, no previous convictions of any kind. He is currently in work. The fact of this criminal conviction has not only been very upsetting to him but also has been irksome and has had consequences: for example, preventing him from travelling to the United States of America to visit relatives.

At all events, the matter eventually was referred to the CCRC. On 5 April 2013 it in turn referred the matter to the Court of Appeal. It did so on the footing that no defence under s.31 of the 1999 Act had been raised at the time when it could and should have been; and that there was a real possibility that the Court of Appeal would take the view that a s.31 defence would probably have succeeded.

The Court of Appeal in the event did take that view. It (Leveson LJ, Fulford LJ and Spencer J) heard the case with other linked cases. The judgment is reported: see R v Mateta [2014] 1 WLR 1516, [2013] EWCA Crim 1372. In each case the appeal was allowed. There is a very helpful exposition of the relevant principles relating to the application of s.31 of the 1999 Act. The court also confirmed the obligation on those representing defendants charged with possession of false identity documents to advise on the possibility of a s.31 defence. It dealt with the specific position of the applicant at paragraphs 34-39 of the judgment. It was held in the case of the applicant that “although…there were a number of complex factual issues” the court was, in the light of the Crown’s approach and the circumstances, prepared to accept that such a defence “would quite probably have succeeded” and that “a clear injustice has been done”. The appeal was allowed. No retrial was sought.

The applicant personally made his claim for compensation for wrongful conviction on 9 August 2013.

That application was rejected by the Secretary of State for Justice by decision letter dated 25 October 2013. It was stated that the applicant failed to meet the statutory test for compensation under s.133 of the Criminal Justice Act 1988. It was said that the conviction had not been reversed on the ground of any new or newly discovered fact: rather it had been reversed on the ground that a s.31 defence had been available but he had not been advised of that.

Solicitors then were instructed. Reference was now made to the Supreme Court decision in Adams (which I discuss below). In the light of the correspondence, a further decision letter was issued by the Secretary of State for Justice, dated 6 January 2014. This was said in the second paragraph:

“It appears that your client’s conviction was overturned on the basis of the existence of a defence arising out of your client’s immigration status. Having reconsidered your client’s application we now accept that this may be capable of constituting a ‘new fact’ for the purpose of section 133 on which the conviction was reversed.”

The letter then went on to comment on the decision in Adams and other authorities. Having done so it went on to say this:

“In determining whether compensation is payable in your client’s case, we have considered the decision of the Court of Appeal. In quashing your client’s conviction, the court said that:

‘…we are prepared to accept this applicant’s defence “would quite probably have succeeded” and we conclude, therefore, “that a clear injustice has been done”.’

This suggests that the Court of Appeal considered it was likely that the defence would have succeeded – it does not go so far as to say that it would have. It cannot be said, therefore, that your client has suffered a miscarriage of justice beyond reasonable doubt on the basis that a new fact ‘so undermines the evidence against your client that no conviction could possibly be based upon it’ (as required by Adams) or on the basis that it can be used to establish ‘beyond reasonable doubt that no reasonable jury properly directed as to the law could convict on the evidence now to be considered’ (as required by Ali).

For these reasons, your client’s case does not satisfy the statutory criteria for a miscarriage of justice and the Justice Secretary is therefore not obliged to make an award of compensation.”

There was further correspondence. The claim form was issued on 4 April 2014. It sought an order quashing the decision of 6 January 2014 and an order requiring the Secretary of State to find that the applicant was entitled to compensation under s.133 of the 1988 Act. It was argued that the Secretary of State had in the decision of 6 January 2014 relied, and solely relied, on the approach of the Court of Appeal in the decision relating to the applicant in the Mateta case as to where the probabilities lay: whereas, it was said, the approach called for in considering an application under s.133 of the 1988 Act is quite distinct from the approach called for in the Court of Appeal (Criminal Division) in considering whether to allow an appeal from a conviction based on a plea of guilt. It was further said on behalf of the applicant that the only rational decision was to grant the application for compensation.

The Grounds of Defence disputed that the decision was flawed in the way the claim form alleged. But in addition the Grounds resurrected the argument made in the first decision letter that here there was, so it was said, no new or newly discovered fact(s) such as to bring the applicant within the reach of s.133 of the 1988 Act.

Permission to apply was granted by Mitting J on 29 May 2014.

The statutory entitlement to claim (in certain circumstances) compensation for a conviction subsequently shown to be wrong was introduced by s.133 of the 1988 Act. Before that, an ex gratia scheme was operated.

The spur for the introduction of the statutory provision evidently was Article 14(6) of the International Covenant on Civil and Political Rights 1966, ratified in May 1976. That provides as follows:

“6.

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

That wording is, in the material respects, substantially – albeit not entirely – replicated in s.133(1) of the 1988 Act. That section in the relevant respects provides as follows:

“133 Compensation for miscarriages of justice.

(1)

Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.

….

(3)

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

Also material is the further provision (giving a restricted meaning to the word “reversed”) contained in s.133(5). That in the relevant respects provides as follows:

“(5)

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

(a)

on an appeal out of time; or

(b)

on a reference—

(i)

under the Criminal Appeal Act 1995; ….”

Pausing there, a number of points may be noted. First, the reference to “miscarriage of justice”, as contained in Article 14(6), is a broad one – very possibly deliberately so, it being designedly left to member states to decide as to how they wished, in this respect, to finalise the content of domestic provisions with a view to giving effect to the Article. Second, however, the replication of that very phrase in s.133 necessarily replicates the inherent uncertainty of its intended reach: it is perhaps not merely a product of hindsight to say that that phrase would be likely to attract differing views as to its intended meaning and effect and, in consequence, would attract litigation. At all events that is precisely what has happened.

A further point may be noted. The section is demonstrably not open ended in conferring a right to compensation in all cases where a conviction is reversed. On the contrary, it is demonstrably limited. For example, the definition of the word “reversed” contained in s.133 entirely precludes a claim for compensation for a successful appeal which is brought in time. So if the self-same “new or newly discovered fact” resulting, so it may be said, in a “miscarriage of justice” is identified and advanced on appeal within the time limits for appeal no compensation is payable. But if the self same new or newly discovered fact is only identified after the time limit for appeal then, on a successful appeal, compensation may in appropriate circumstances be payable. By way of further example, s.133 does not appear to contemplate that an error in law by the trial judge, whether identified in time or out of time and which results in a successful appeal and thereafter an asserted miscarriage of justice, is capable of grounding a compensation claim either.

It thus is the case that, as drafted, s.133 was designed to have limitations as to its ambit. It at all events most certainly does not – any more than does Article 14(6) – provide a right to compensation to all those whose convictions at trial are subsequently quashed on appeal.

I should add that in the aftermath of the decision in Adams (cited below) s.133(1) was the subject of amendment, with effect from 13 March 2014, by s.175 of the Anti-Social Behaviour, Crime and Policing Act 2014. The following provisions are added:

“175 Compensation for miscarriages of justice

(1)

In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice) after subsection (1) there is inserted—

‘(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).’

(2)

Subsection (1ZA) of section 133 of the Criminal Justice Act 1988 has effect in relation to—

(a)

any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and

(b)

any application for compensation made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under subsection (3) of that section.”

It was common ground before us that the decision here falls to be considered under the previous provisions of s.133(1) (although if the decision is quashed and remitted for re-determination then the re-determination will be by reference to the amended provisions). I should also add that for a number of years the ex gratia scheme was operated in tandem with the statutory scheme: but that had stopped some time before the applicant made his application.

Finally, I should refer to the provisions of s.31 of the Immigration and Asylum Act 1999 (as amended). In the relevant respects that provides as follows:

“(1)

It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a)

presented himself to the authorities in the United Kingdom without delay;

(b)

showed good cause for his illegal entry or presence; and

(c)

made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2)

If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.”

Sub-section (3) identifies the offences in question to which the defence may be available. It was common ground before us that in 2006 these included the offence charged against the applicant. Subsections (6), (7) and (8) of s.31 provide as follows:

“(6)

“Refugee” has the same meaning as it has for the purposes of the Refugee Convention.

(7)

If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8)

A person who—

(a)

was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but

(b)

at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.”

Preliminary observations

The great part of the debate before us was as to the meaning of “new or newly discovered fact” as used in s.133(1). Since the respective arguments hinge, to a significant degree, on an examination of the authorities on this point it is, I think, convenient to review those authorities at this stage. I am afraid that it will be necessary to do so at some length.

But before I do so I think it worthwhile to consider the wording of s.133(1) as it then stood without recourse to the decided cases – after all, questions of statutory interpretation often involve a matter of impression, to a greater or lesser extent – and also worthwhile to consider in overview the events which happened.

The first point is that s.133(1) – replicating Article 14(6) – is expressly predicated on there being a new or newly discovered fact. The statute does not, for example, say “matter”; it does not say “evidence”. What therefore is required, for the jurisdiction to be exercisable, is a fact.

The second point is that the fact must be new or newly discovered. In the present case it cannot readily be said that the underlying fact(s) relied upon are “new”. Nothing has changed since 2006. The position now, on the underlying facts, is essentially as it was then. Thus for this claim to succeed the fact(s) which grounded the reversal of the conviction would, on the face of it, have to come within the ambit of “newly discovered” facts under s.133(1), on its true interpretation.

The third point in the context of s.133(1) is that it cannot be said that the asserted facts now relied upon were not known at the time, in so far as they relate to the circumstances of the applicant’s claimed refugee status and the circumstances of his leaving Cameroon and coming to the United Kingdom, via Heathrow, before ending up at Manchester Airport (where he was arrested). Clearly the applicant knew them (although of course he could not have known of any legal implications arising from them). It is clear that his solicitors and counsel also knew them – as is evidenced by the Proof of Evidence prepared at the time. It further seems clear that the court itself knew them when the applicant pleaded guilty and was sentenced on 26 October 2006: for not only was his position summarised, albeit not in great detail, in the Pre-Sentence Report before the court but also, it can be safely presumed, they would have been outlined by prosecuting counsel in opening the case and dwelt on as appropriate by defence counsel in mitigation. That the credibility of the applicant’s account of his position in Cameroon was subsequently accepted by the tribunal judge and that his account of the circumstances of his travel from Cameroon to the United Kingdom was subsequently accepted, at all events for the purposes of the appeal, by the Court of Appeal (Criminal Division) does not change that. So in essence what is the focus of attention for present purposes is that no one – solicitors, counsel or (it may be inferred) the court – appreciated that a complete defence under s.31 was potentially available. No one then seems to have thought of it. Thus the position in reality would seem to be that, on the facts as they always were, there was a legal defence which has since been discovered.

But the position has, of course, to be considered in the light of the authorities. I turn to these.

The decided cases

Some of the cases cited to us were primarily directed at the meaning of the phrase “miscarriage of justice” as used in s.133(1) of the 1988 Act (prior to its amendment) and as to whether, in the circumstances of the particular case, such a miscarriage of justice had been shown beyond reasonable doubt. A prime illustration of this can be found in the case of R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1; [2004] UKHL 18. That case, however, did not involve the need for any consideration of the meaning of the phrase “new or newly discovered fact” – the facts on any view plainly were, in the circumstances of that case. Indeed the events leading to Mr Mullen’s deportation from Zimbabwe were concealed from him by the Executive for many years.

Of somewhat more relevance to the issue before us is In re McFarland [2004] 1 WLR 1289, [2004] UKHL 17. That was a case from Northern Ireland. Counsel for Mr McFarland had, quite inappropriately, had a private meeting with the magistrate in his chambers after an amount of the prosecution evidence had been given. The magistrate apparently indicated that he viewed favourably the evidence of the prosecution witnesses he had heard and that, if the defendant continued to contest the matter, the matter would be referred to the High Court for sentencing (it having greater powers of sentence than the magistrate) and the sentence might be as much as 18 months if not more. Mr McFarland, having been told this, then pleaded guilty. He was sentenced to eight months’ imprisonment, which he served. Subsequently he challenged his conviction on judicial review and succeeded in having the conviction quashed.

It was thereafter argued that he was entitled to compensation under the ex gratia scheme (since in fact his conviction strictly had not been “reversed” in the sense indicated in s.133(5)). But aspects of the argument focused on s.133. Lord Bingham, with whom Lord Scott, Lord Rodger and Lord Walker agreed, held that there had been no newly discovered fact. Mr McFarland at the time knew (from counsel) the gist of the conversation in the magistrate’s chambers. It seems that the magistrate had in fact misunderstood his power of committal to the High Court. That was, among other things, relied upon as a newly discovered fact, since Mr McFarland did not know at the time of the magistrate’s misunderstanding. As to that Lord Bingham said this:

“Mr McFarland did not know at the time that the magistrate had misunderstood his committal power but this, even if a newly discovered fact, was not the ground on which the conviction was quashed: the magistrate’s intimation would have been no less objectionable had he had the power which he believed himself to have. Both Kerr J [2002] NIJB 154, 162-163 and the Court of Appeal [2002] NI 337, 342, para 9 rejected this argument, and they were right to do so. As was said by the Court of Appeal in R v Secretary of State for the Home Department Ex p Bateman (1994) 7 Admin LR 175, 182 ‘the ground of the reversal was not…the discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along’.”

The case of R v Secretary of State for the Home Department ex parte Bateman and Howse (1994) 7 Admin LR 175 to which Lord Bingham referred with approval is, I think, of importance on the matters before us.

The decision involved two conjoined cases.

In rejecting the claim in the Divisional Court, Leggatt LJ (with whom McCullough J agreed) in the course of his judgment succinctly said this:

“The suggestion that the reversal of a conviction on the ground that evidence was wrongly admitted, or on the ground that the bye-law 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, in the one case in the Court of Appeal following a reference by the Home Secretary, and, in the other, by the House of Lords.”

The same conclusion was reached by the Court of Appeal. Sir Thomas Bingham MR (with whom Farquharson LJ and Simon Brown LJ agreed) said this at page 182G:

“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 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 discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along.”

He went on expressly to approve the conclusion of Leggatt LJ on this point.

R (Murphy) v Secretary of State for the Home Department [2005] 1 WLR 3516, [2005] EWHC 140 (Admin) was a decision of the Divisional Court (Richards J and Pitchford J). In that case an initial appeal, based mainly on fresh evidence, against a murder conviction had been dismissed. A further appeal against the murder conviction, on a reference by the CCRC, was subsequently allowed on the basis of further fresh evidence. Applications for compensation under s.133 were thereafter made and refused by the Secretary of State. It was held by the Divisional Court that new evidence resulting in a finding of fact was capable of being described as a new or newly discovered fact even if it related to a matter which already had been in issue at trial: but the fact had to have been discovered since the date of the final decision (including first appeal). As stated by Richards J, giving the judgment of the court, at paragraph 58:

“We accept that section 133 of the 1988 Act read in the light of Article 14(6) of the ICCPR is concerned only with facts that emerge after the ordinary appellate process has been exhausted.”

That then leads to the decision of the Supreme Court in Adams [2012] 1 AC 48, [2011] UKSC 18. It – or at all events aspects of certain of the judgments – was the bedrock of the applicant’s argument before us.

In Adams (there were also two conjoined appeals) there was a claim for compensation under s.133. The appellant had been convicted of murder. An initial appeal against the murder conviction had been rejected. Following a reference by the CCRC, however, Adams’ conviction was subsequently quashed. The prosecution case had been heavily dependent on the evidence of a man called Thompson, whose evidence also had had the support of two police officers. The defence case was that Thompson had struck a deal with the police. In the unused material disclosed by the prosecution to the defence before trial was information lending powerful support to the defence case. However the defendant’s new legal team, instructed relatively recently before trial, did not study and thus entirely overlooked that material: which in consequence was never deployed at the trial. It was that material, once it and its significance had been identified, that caused the Court of Appeal, on the reference by the CCRC, to quash the conviction: see Adams [2007] 1 Cr App 449, [2007] EWCA Crim 1, in particular at paragraph 155 of the judgment. The Supreme Court, in the event, dismissed the appeal of Adams in respect of his claim for compensation but allowed (by a majority) the appeals in the other two cases.

It must be said at the outset that it is somewhat difficult to identify a ratio of the decision of the Supreme Court in Adams in so far as it considers the issue of “new or newly discovered fact”. Much of the decision is in fact devoted to the meaning of “miscarriage of justice” as used in s.133. On that, the nine judge court was divided 5-4. (In the event the majority viewpoint was then superseded by the amendments to s.133 introduced by s.175 of the Anti-Social Behaviour, Crime and Policing Act 2014). That aspect of the case does not concern us for present purposes. What does concern us is the court’s consideration of the meaning and effect of the phrase “new or newly discovered fact”.

The passage on which particular reliance was placed on behalf of the applicant is found in the judgment of Lord Phillips at paragraphs 59 to 63. It is necessary to set out those paragraphs in full:

“59.

Mr Adams' appeal raises a second issue. Were the facts that led to the quashing of his conviction ‘newly discovered’ despite the fact that they were contained in documents disclosed to his legal representatives before his trial or available on the Holmes database? The phrase "newly discovered" raises a further difficult problem of interpretation, for it does not indicate to whom the discovery must be new.

60.

Ireland has given effect to article 14(6) by section 9 of the Criminal Procedure Act 1993. Section 9(6) of that Act provides:

'newly-discovered fact' means—

(a)

where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings….’

I would adopt this generous interpretation of ‘newly discovered fact’.

61.

Section 133(1), following the almost identical wording of article 14(6), ends with the proviso :

‘unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.’

62.

This proviso is significant in more than one way. First, the use of the word ‘non-disclosure’ would seem to equate the new ‘discovery’ with ‘disclosure’. The latter word has a broad ambit and, in context, suggests to me the bringing of a fact into the public domain and, in particular, the disclosure of that fact to the court. Secondly, I read the provision as excluding a right to compensation where the person convicted has deliberately prevented the disclosure of the relevant fact, or where the non-discovery of that fact is otherwise attributable to his own fault.

63.

We are envisaging a situation where a claimant has been convicted, and may well have served a lengthy term of imprisonment, in circumstances where it has now ‘been discovered’ that a fact existed which either demonstrates that he was innocent or, at least, undermines the case that the prosecution brought against him. If he was aware of this fact but did not draw it to the attention of his lawyers, and he did not deliberately conceal it (which would bring the fact within the proviso), this will either be because the significance of the fact was not reasonably apparent or because it was not apparent to him. Many who are brought before the criminal courts are illiterate, ill-educated, suffering from one or another form of mental illness or of limited intellectual ability. A person who has been wrongly convicted should not be penalised should this be attributable to any of these matters. It is for those reasons that I would adopt the same interpretation of ‘newly discovered fact’ as the Irish legislature.”

That is a most striking and interesting approach. At first sight, and indeed at second sight, the Criminal Procedure Act 1993 of Ireland has a content and structure entirely different from that of s.133 of the 1988 Act (of which doubtless the Irish draftsman was well aware). Further, the Irish statute adopts wording entirely different from Article 14(6): whereas s.133 to a considerable extent tracks that wording. On one view, therefore, the conclusion might well have been that Ireland had simply chosen to give a more generous and extended reach of the compensation provisions than was actually required by Article 14(6) itself. It may, indeed, be noted that Lord Phillips, in adopting the Irish definition of “new or newly discovered fact”, described it as a “generous” interpretation; that perhaps may be contrasted with the otherwise parsimonious approach contained in s.133 by reference, for example, to the limited circumstances in which a conviction can be said to be “reversed”.

Lady Hale expressly agreed with, and adopted, the reasoning of Lord Phillips on this issue: see paragraph 117. She added:

“This means that the person convicted either did not know or did not appreciate the significance of the information in question.”

Lord Kerr also expressly agreed with Lord Phillips on this issue: see paragraph 180. He added, approving observations made by Dyson LJ in the Court of Appeal:

“It would be wholly anomalous, as Dyson LJ has pointed out, that a person whose innocence can be conclusively proved should be deprived of compensation simply because his lawyers failed to communicate the vital information or failed to grasp its significance.”

Lord Clarke (who placed much emphasis on the distinction between a fact being discovered and a fact being discoverable) did not in terms endorse the incorporation of the Irish statutory definition. However, it does seem that his reasoning at paragraphs 224 to 229 of his judgment is broadly consistent with such an approach.

Lord Hope, however, adopted a different approach. He did not accept that material that had been available to the defence legal team at trial could be said to be “new or newly discovered” when taken into account at the out-of-time appeal. The fact that Adams himself was unaware of the material, because it was not revealed to him by his legal team, did not suffice: see paragraphs 105 to 107 of his judgment. He also said at paragraph 107:

“I agree with Lord Judge CJ that a fact is not new or newly discovered for the purposes of section 133 just because the defendant himself, who was previously unaware of that fact, ceases to be ignorant of it.”

Lord Judge was one of the four judges who dissented as to the overall result of the other two appeals. On the issue of “new or newly discovered fact”, however, he had said this:

“266.

In the discussion about the meaning of "new" or "newly discovered" fact the rival contentions went too far. It would be unrealistic, and removed from the realities of the conduct of the defence at trial that his legal advisers should inform the defendant personally of each and every fact and matter to which their attention is drawn by the prosecution. When all is said and done, the defence advocate is not a mouthpiece or echo chamber for his client. The responsibility for giving advice and assisting the defendant to make whatever decisions which he must make for himself is one aspect of the responsibilities: the deployment of evidence and argument on his behalf is another. Sometimes the lines overlap, but often they do not. It therefore follows that merely because the defendant himself is personally ignorant of a particular fact, it is not "new" or "newly discovered" when the defendant personally ceases to be ignorant of it. On the other hand, when the prosecution has complied with all its obligations in relation to disclosure of material to the defence lawyers, and they, for whatever reason, do not then deploy material which appears to be adverse to the prosecution or which would assist the defendant, that material should not automatically be excluded from the ambit of the section on the basis of prosecutorial compliance with its disclosure obligations. Rather the approach should coincide with the circumstances in which fresh evidence is sought to be deployed before the Court in accordance with section 23 of the Criminal Appeal Act 1968. This normally predicates that there should be a reasonable explanation for the earlier failure to adduce the evidence at the trial.

267.

In the present case, it is clear from the judgment of the Court in Adams that the conviction was quashed on the basis of fresh evidence in circumstances in which, notwithstanding that the prosecution had fully performed its responsibilities in relation to disclosure, Adams's legal team had failed adequately to respond and fulfil theirs. In my judgment that failure or omission was a new or newly discovered fact within the ambit of section 133.”

Lord Brown agreed with Lord Judge’s judgment (paragraph 269) and added some extensive further observations. He expressly agreed with Lord Judge’s approach on “new or newly discovered fact”: paragraph 282. Lord Rodger agreed with Lord Brown. Lord Walker agreed with Lord Judge and Lord Brown.

Thus the approach of Lord Phillips to, and his conclusion as to the meaning and effect of, “new or newly discovered fact” as used in s.133 was not, as I see it, the approach of the majority on this particular issue.

There is one further case on this issue post-dating the decision in Adams, to which counsel drew our attention. It is the decision of the Court of Appeal of Northern Ireland (Sir Declan Morgan LCJ, Girvan LJ and Coghlin LJ) in Fitzpatrick & Shiels [2013] NICA 66. It is of very considerable importance. I propose to deal with it in my discussion of the arguments.

The case of the applicant was presented by Mr Edward Fitzgerald QC, leading Ms Michelle Knorr. The case of the respondent was presented by Mr James Strachan QC, leading Mr Mathew Gullick. I would pay tribute to the care and thoroughness with which the respective arguments, written and oral, were presented to us. I will, however, summarise them relatively briefly.

Mr Fitzgerald put his case in two ways, placing heavy emphasis on the decision in Adams. He urged the court (adopting a phrase from another case) to “eschew the austerity of tabulated legalism”. He went on to submit that here there indeed was a “new or newly discovered fact”. He put his case in two, albeit inter-related, ways:

Mr Strachan submitted that nothing in Adams compelled such a conclusion. He submitted that Lord Phillips’ view on the point was not a majority view. He further submitted that in any event the court in Adams had, for this purpose, been focusing on the meaning of “newly discovered” and nothing was said to undermine or gloss the statutory requirement that what has to be new or newly discovered is a fact. He submitted that, as a matter of substance, what had been overlooked here was a matter of law. The facts had been known all along to the applicant and his lawyers. All that had changed was the (newly acquired) appreciation of the law; and the identification of the error of law made was thus incapable of being a newly discovered fact. He also pointed out that the decision in ex parte Bateman and Howse (cited with approval in McFarland) had been cited, and referred to, in Adams without any doubt being cast on its correctness.

I consider that Mr Strachan’s arguments are correct.

As I have already said, Parliament has set itself against a broad entitlement to compensation in favour of defendants whose convictions have been quashed (perhaps in part for the reasons identified by Lord Bingham in paragraphs 6 and 7 of his speech in McFarland).

That said, it seems to me, as an initial point, that Mr Fitzgerald’s argument gives rise to potential anomalies. If a subsequently identified error as to the law by a trial judge cannot ground a claim for compensation, why should a subsequently identified error as to the law by a defendant’s legal advisers? I can see no obvious reason why it should (or can). In that regard, I agree with Mr Strachan’s overarching submission that for Mr Fitzgerald to label the oversight of the trial lawyers as a fact newly discovered (viz. the fact that the applicant had not been told at the time that he did have a statutory defence, which the lawyers had not appreciated) is to put form over substance.

In support of his first formulation of the grounds, Mr Fitzgerald drew on what Lord Phillips and Lady Hale and Lord Kerr said in Adams. He said (reflecting Lord Kerr’s comments at paragraph 180), that a person should not be deprived of compensation simply because his lawyers failed to communicate the vital information or failed to grasp its significance. But that, in my view, cannot be stretched to meet the circumstances of this case. Suppose, for example, the lawyers had in 2006 identified and considered s.31 of the 1999 Act – that is, appreciated its potential relevance – and nevertheless advised the applicant that on their view of the facts it afforded no defence (a view which, as it happens, the solicitors have since stated to the CCRC). Mr Fitzgerald argued – probably had to argue – that on such a scenario the applicant still could have recovered compensation. I have very great difficulty with that.

I should also add that the judgments in Adams place considerable emphasis on what was made known to the court. In Adams, the court had not itself known of what was in the unused material. But in the present case the Crown Court, it can be inferred, did know the essential facts of the case, through the addresses of prosecuting and defence counsel and through what was contained in the pre-sentence report. (I am aware that facts are not the same as evidence, and that can sometimes be of real importance in cases under s.133. But I need not dwell on the point here. In any event, the judge in the Crown Court did not require a Newton hearing and what was put before him was to be taken as accepted fact.)

There was, in my view, considerable force in Mr Strachan’s observation that Lord Phillips (and Lady Hale and Lord Kerr) were in truth focusing primarily, on this aspect of the case before them, on the words “newly discovered”. It was really taken as a given that the contents of the unused material (not, it is to be repeated, known to Adams himself) were facts for this purpose: they were, as Lord Phillips said in paragraph 59, the facts that had led to the quashing of his conviction. That, as I see it, is in contradistinction to the case before us.

Yet further, Mr Fitzgerald’s arguments seem to me to run counter to the decision of the Court of Appeal in ex parte Bateman and Howse (if not also counter to the approach of the Divisional Court in Murphy and of the House of Lords in McFarland). It transpired that Ms Howse had, unbeknown to her legal advisers at the time, a complete defence to the charges: for the House of Lords had subsequently declared the bye-laws to be ultra vires and invalid: and, on normal principles, such a judgment is to be taken as declaratory of the law as it has always been. Thus – as here – Ms Howse did not know and was not advised that she had a defence: and in my view it is immaterial for present purposes whether the lack of advice as to the availability of a defence is due to culpable oversight or to an entirely understandable lack of awareness of the true legal position. As the Court of Appeal there held, the ultimate ground of reversal was a legal ruling on facts known all along. In my view that is also the position in the present case.

The matter can also perhaps be tested in this way. Section 133 in its original form requires that the conviction be reversed “on the ground that” the newly discovered fact shows there has been a miscarriage of justice. But the Court of Appeal (Criminal Division) did not allow the applicant’s appeal on the ground that the statutory defence under s.31 of the 1999 Act had been overlooked. Rather, it allowed the appeal on the ground that such a defence had been available. That was a matter of law (on the already known facts) and it was that which was newly discovered. It is quite different from the position in Adams.

Mr Fitzgerald said that ex parte Bateman and Howse could be distinguished as involving “pure” points of law which had been newly identified after trial but not identified in the court at the trial. But in my view that proposition is again an appeal to form over substance. Perhaps Mr Bateman’s case had its distinguishing features on the facts; but it seems to me that the approach taken by the court in Ms Howse’s case is the approach required to be applied to the present case.

I thus would conclude in the present case that the subsequent appreciation, on facts and circumstances known at the time of the Crown Court proceedings, that the applicant had an available statutory defence is not capable of being a “newly discovered fact” within the meaning of s.133. Thus the applicant cannot seek compensation under s.133. That is not, I think, an unfairly narrow and technical conclusion, pace Mr Fitzgerald. Rather, it is a conclusion which derives from the relatively narrow way in which s.133 overall is drawn. To conclude otherwise would, in effect, involve rewriting the section. Moreover, I can see no policy objection to such a conclusion, given the relative narrowness of the scope of the section taken as a whole.

Such a conclusion is, I think, also consistent with what Lord Judge said in paragraph 266 of his judgment in Adams (with which four other members of the Supreme Court agreed). I was, however, particularly with regard to the second limb of Mr Fitzgerald’s argument, rather troubled by the last sentence of paragraph 267 of Lord Judge’s judgment. That, taken on its own, might on one reading seem to connote that any subsequently identified failure or omission on the part of the trial lawyers adequately to perform their responsibilities might of itself be a new or newly discovered fact within the ambit of s.133. Mr Fitzgerald, indeed, would say: precisely so. That, he therefore says, should likewise be the position here: the fact was, he says, that the applicant had been badly advised. But, set in the context of what Lord Judge had previously said, I do not think that so open-ended a conclusion is to be drawn from that sentence of his judgment; nor would it be consistent with ex parte Bateman and Howse. In my view, read in context, Lord Judge was talking about an omission or failure which was of a factual nature and his statement in paragraph 267 was directed to the facts of the case before him. He simply was not addressing the position where the omission was as to the law.

I turn finally to the decision of the Court of Appeal in Northern Ireland in Fitzpatrick and Shiels.

The decision involved two related appeals. In each case the defendant (each being 16 years old at the time), having made admissions in interview, had pleaded guilty. The circumstances in which they had made their admissions were known both to themselves and to their lawyers representing them when they subsequently pleaded guilty in the Crown Court (or equivalent court). There were no appeals. Very many years later, the cases were referred to the CCRC which in turn referred them to the Court of Appeal. The convictions were quashed. This was on the basis that neither defendant had been afforded access either to legal advice or to an appropriate adult when interviewed, in breach of the applicable Judges’ Rules. It was, it may be noted, stated that standards then prevailing as to such matters were not invested with the significance that they had acquired in more modern times. Subsequently, each claimed compensation under s.133 of the 1988 Act (which applies equally in Northern Ireland). They challenged by judicial review proceedings the decision of the Department of Justice to refuse them compensation.

The Court of Appeal of Northern Ireland necessarily had to consider the decision of the Supreme Court in Adams, by the ratio of which it was bound. The applicants’ counsel advanced arguments similar to those advanced by Mr Fitzgerald before us, with the like particular emphasis on paragraphs 59 to 63 of Lord Phillips’ judgment.

In the course of giving the (reserved) judgment of the court, Girvan LJ, at paragraph 22, drew attention to the fact that, unlike in Adams, each defendant had pleaded guilty. That is so: although, speaking for myself, I do not see that that fact can, of itself, by any means necessarily be a conclusive objection to a claim for compensation under s.133. But more in point for present purposes is what Girvan LJ said at paragraph 23 of the judgment. It needs setting out in full:

“23.

The adoption by Lord Phillips of the interpretation of newly discovered facts being the same as that to be found in the Irish provision is not without its problems.  As the case in Mullan [sic] itself graphically illustrates there are dangers in resorting to a foreign legal system as a guide to the proper interpretation of domestic law.  Section 9 of the Irish Criminal Procedure Act 1988 has not apparently been the subject of any reported adjudication.  The structure of Section 9 of the Act is different from that in Section 133.  Under Section 9(6)(b) a newly discovered fact means: “where a conviction was quashed by the court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisors during the trial”.  Thus, unlike in the United Kingdom, it would appear that an in-time appeal in Ireland may lead to the compensatable quashing of a conviction by reason of the discovery of new facts between trial and appeal. Subject to the rest of Section 9 it appears that that is a situation which could give rise to there having been a miscarriage of justice within the section.  It seems clear that the discovery of a new fact can only refer to a fact of an evidential nature.  An error by the trial judge in admitting evidence could not qualify as a newly discovered fact.  If the facts were known at the trial and the defendant erroneously argues the law at first instance or the judge erred in law in his ruling, the ascertainment by the Appeal Court of that error resulting in the quashing of the conviction cannot have been intended to give rise to a claim to compensation under Section 9 since the appeal process has prevented any miscarriage of justice occurring.  If properly analysed, Lord Phillips’ adoption of the Irish statutory definition in fact does not assist the appellants.  There is a clear distinction between the correction of a conviction because of new factual material not known at the trial and the correction of a conviction because of a different view on the law as applied to the same factual situation which was known to the trial court.”

And in the course of paragraph 24 of the judgment he went on to say this:

“…A change in legal standards subsequent to the trial and conviction of a person whose conviction was in accordance with the law at the time of the trial cannot be viewed as the discovery of a new fact demonstrating that a miscarriage of justice has occurred for the purposes of Section 133.  What Section 133 contemplates is the discovery of an evidential based piece of factual material which, if it had been known at the time of trial, would have demonstrated that there was no case against the defendant that would stand up to proper legal scrutiny.”

He went on to refer approvingly to what was said on the point in ex parte Bateman and Howse and in McFarland.

These statements are directly in point. They are flatly against Mr Fitzgerald’s present argument; and his reference to s.6 of the Northern Ireland (Emergency Provisions) Act 1973 is nothing to the point for the purposes of the general statements of principle there enunciated. The judgment states in terms that, for the purposes of s.133, the discovery of a new fact can only refer to a fact of an evidential nature. It states in terms that on facts known at trial an erroneous argument on the law by the defendant’s lawyers can ground no claim thereafter for compensation. It emphasises the distinction between the correction of a conviction because of new factual material not known at trial and the correction of a conviction because of a different view on the law applied to the same factual situation known at trial.

This court is not formally bound, I apprehend, by the decision in Fitzpatrick and Shiels. But when it comes to this reserved decision of the Court of Appeal of Northern Ireland, where the authorities were fully addressed and the judgment was fully reasoned, I simply would not be prepared to differ from it, at least unless I was convinced that it was wrong. I am not prepared to differ from it. On the contrary, I think, if I may respectfully say so, that the decision was right.

Consequently, for all these reasons, this claim must be dismissed.

That conclusion means that Mr Fitzgerald’s second ground necessarily falls away. However, because the claim form, when issued, was (understandably) only directed at this ground and because we heard full argument on the point I should express my conclusions on it. I will do so relatively shortly.

If this had been the only ground before us I would have accepted it and would have remitted the matter for further consideration by the Secretary of State.

This is because the decision letter of 6 January 2014 was flawed as to its reasoning. It is entirely clear from the authorities (and consistent with s.133(3)) that a decision under s.133 is for the Secretary of State, not the courts. Yet that decision letter is entirely focused on the remarks made by the Court of Appeal (Criminal Division) in quashing the conviction. But that court, in making its assessment as to the probabilities, was doing so just because that is what, in law, was the approach required of the Court of Appeal in such context. The Court of Appeal was in no way concerned with any issue as to compensation, nor were its remarks directed to that situation. No doubt the observations of the Court of Appeal were a matter thereafter to be taken into account by the Secretary of State. But the decision letter goes much further than that. It effectively states (“For these reasons…”) that what the Court of Appeal had said was determinative on the issue of compensation. There is no sense to be gathered of the Secretary of State exercising his own judgment with regard to s.133 after appraisal of all the relevant circumstances.

Perhaps appreciating the difficulties, the Secretary of State put in a witness statement dated 4 July 2014 of Mr Goulbourn (a member of the Miscarriage of Justice Team at the Ministry of Justice) designed to supplement the reasoning of the letter of 6 January 2014. This statement was served some two months after the Acknowledgment of Service had been lodged.

The Administrative Court is not infrequently presented with subsequent evidence designed to bolster the reasoning of an original decision (or designed to say that the same result would have been reached in any event). It is generally wary of placing reliance on such subsequent evidence, for good reason. The relevant general approach and principles are most helpfully summarised in the decision of Elias J in Hereford Waste Watchers Ltd v Herefordshire Council [2005] Env LR 586, [2005] EWHC 191 (Admin). Applying those principles, and having regard to the circumstances of this case, I would have taken the view that it would not be right to admit this witness statement for this purpose. In any event, what is said in the witness statement still, arguably, is deficient as reasoning.

Mr Fitzgerald shortly submitted that we should not, in our discretion, remit for further redetermination because, so he said, there could only be one rational and inevitable conclusion: viz. a decision, applying the standard of beyond reasonable doubt, in favour of the applicant. That is untenable. The Court of Appeal (Criminal Division) had rightly identified that there were a number of “complex factual issues”. Each stage of the statutory defence required factual assessment and evaluation. As the Court of Appeal also noted in Mateta (at paragraph 18), Hughes LJ in Jaddi [2012] EWCA Crim 265 had stated:

“…In very general terms, it seems to us that in the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place – that is to say, the arrival immigration hall at a United Kingdom airport.”

It is true that the applicant was, on his case, in transit at the time of his arrest and acting on the instructions of agents. But the burden was on him to make out the statutory defence. I cannot myself readily conceive that, taking the applicant’s evidence at its highest, a trial judge would have been bound to accede to any application to withdraw the charge if made at the close of all the evidence. Nor can Mr Fitzgerald get any mileage from the fact that the Crown did not, at the conclusion of the criminal appeal, seek a retrial. The (pragmatic) reason for not doing so is obvious: the applicant had long since served his sentence of six months’ imprisonment.

These points, however, give altogether more force to Mr Strachan’s own submission that the case should not be remitted: because, as he asserted (in diametric opposition to Mr Fitzgerald) there can only be one rational and inevitable outcome: viz. a decision adverse to the applicant. However, as I have said, it is not for the courts to make the decision under s.133: and all in all I think that the right course would have been, had I not been against the applicant on the first ground, to remit the matter for further determination. That, of course, would then have fallen to be dealt with under the amended provisions of s.133 – which are scarcely helpful to the applicant’s cause. I note that Mitting J, in granting permission, had percipiently alluded to these potential difficulties for the applicant and advised careful consideration by the applicant and his advisers of the position, on that scenario.

I would dismiss this claim for judicial review. I would hope that the parties can come to an agreement on costs. If not, written submissions should be lodged.

I agree.