Compensation - Facts - Fresh evidence - Miscarriage of justice

R (on the application of Andrew Keith Adams) v Secretary of State for Justice: In the matter of Eamonn MacDermott: In the matter of Raymond Pius McCartney: SC (Justices of the Supreme Court: Lords Phillips (president), Hope (deputy president), Rodger, Walker, Lord Brown, Judge, Kerr, Clarke, Lady Hale): 11 May 2011

In conjoined appeals the appellants (X, Y and Z) appealed against decisions ([2009] EWCA Civ 1291 and [2010] NICA 3) that they were not entitled to compensation following the quashing of their convictions for murder.

X, Y and Z had each had his conviction quashed by the Court of Appeal.

In X’s case the court found that, had his legal representatives deployed unused material, the jury might not have been satisfied of his guilt. It did not, however, find that he would inevitably have been acquitted.

Y and Z were convicted on the basis of admissions which they claimed had been elicited through ill-treatment by the police.

When evidence subsequently became available that might have discredited the police officers on that issue, the convictions were quashed on the basis that there was a distinct feeling of unease about their safety.

X, Y and Z each unsuccessfully claimed compensation under section 133 of the Criminal Justice Act 1988.

The issue arising in all three appeals was the meaning of the phrase ‘miscarriage of justice’ in section 133. In X’s case there was a second issue as to the meaning of the phrase ‘a new or newly discovered fact’.

Held: (1) (Lords Rodger, Walker, Brown, and Judge dissenting) Relatively few domestic authorities bore on the meaning of ‘miscarriage of justice’ in section 133.

The decision in R (on the application of Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1 and the cases following it did not help and a fresh approach was required, Mullen considered.

The primary object of section 133 was to give an entitlement to compensation to a person who had been convicted of a crime that he had not committed.

Its subsidiary object was that compensation should not be paid to somebody who had been convicted of a crime that he had committed.

The mere quashing of a conviction did not prove innocence and could not be the trigger for compensation.

The circumstances in which a conviction could be quashed on the basis of fresh evidence could be divided into four categories: (i) where the fresh evidence clearly showed that the defendant was innocent; (ii) where the fresh evidence was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted; (iii) where the fresh evidence rendered the conviction unsafe because, had it been available at the time of the trial, a reasonable jury might or might not have convicted; (iv) where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of somebody who should not have been convicted.

Category (i) cases clearly fell within section 133 but did not provide the exclusive definition of ‘miscarriage of justice’ for the purposes of that section.

Category (iii) and category (iv) cases did not fall within section 133.

Category (ii) did not provide an adequate definition of ‘miscarriage of justice’ and would therefore be replaced with the following, more robust, test.

A new fact would show that a miscarriage of justice had occurred when it so undermined the evidence against the defendant that no conviction could possibly be based upon it.

That was a matter to which the test of satisfaction beyond reasonable doubt could readily be applied.

It would not guarantee that all those who were entitled to compensation were innocent, but it would ensure that innocent defendants convicted on evidence that was subsequently discredited were not precluded from obtaining compensation because they could not prove their innocence beyond reasonable doubt (see paragraphs 9-10, 35, 37-41, 43, 48-50, 55, 99-102, 114-117, 172, 177-179, 187-189, 194, 216, 249, 277-281 of judgment).

(2) Section 133(5A) did not mean that compensation was payable in every case in which a retrial was ordered and the defendant acquitted.

The section 133(1) test still had to be passed (paragraphs 56-57, 103-104, 222-223, 253-254).

(3) X’s appeal raised the question of whether the facts leading to the quashing of his conviction were ‘newly discovered’ even though they were contained in documents disclosed to his legal representatives before his trial.

(Per Lords Phillips, Kerr, Clarke and Lady Hale) The generous interpretation of the phrase ‘newly discovered fact’ contained in section 9(6) of the Criminal Procedure Act 1993 (Republic of Ireland), which covered facts that had came to the defendant’s notice after the determination of the appeal, or those the significance of which had not been appreciated by his legal advisers during the trial or the appeal, was to be adopted (paragraphs 60, 180, 224-229).

(Per Lords Rodger, Walker, Brown and Judge) The approach to be taken to newly discovered facts should coincide with the circumstances in which fresh evidence was sought to be deployed in accordance with section 23 of the Criminal Appeal Act 1968 (paragraphs 266-267).

(Per Lord Hope) Material disclosed to the defence by the time of trial could not be said to be new or newly discovered when taken into account at the appeal stage (paragraph 107).

(4) X’s case was a category (iii) situation and his appeal would be dismissed (paragraphs 64, 112, 118, 183, 236, 268, 283).

(5) (Lords Rodger, Walker, Brown and Judge dissenting) The evidence against Y and Z had been so undermined that no conviction could possibly be based on it and their appeals would therefore be allowed (paragraphs 65, 113, 118, 182, 237, 268, 283).

Appeals allowed in part.

Tim Owen QC, Hugh Southey QC (instructed by Hickman & Rose) for the first appellant; Robert Tam QC, James Strachan (instructed by Treasury Solicitor) for the first respondent; John O'Hara QC, Joseph Brolly (instructed by McCartney & Casey) for the second appellant; Paul Maguire QC, David Scoffield (instructed by Departmental Solicitor's Office) for the second and third respondent; Eilis McDermott QC, Donal Sayers (instructed by MacDermott, McGurk & Partners) for the third appellant: Alex Bailin QC, Alison MacDonald (instructed by Kirkland & Ellis International) for the first intervener; Ian Glen QC, Gordon Bishop (instructed by Wells Burcombe) for the second intervener.