Compensation for ‘Miscarriage of Justice’
| Author | Marny Requa |
| DOI | 10.1350/jcla.2011.75.5.725 |
| Published date | 01 October 2011 |
| Date | 01 October 2011 |
| Subject Matter | Supreme Court |
Supreme Court
Compensation for ‘Miscarriage of Justice’
R (on the application of Adams) (FC) vSecretary of State for Justice; Re
MacDermott’s Application for Judicial Review (Northern Ireland); Re
McCartney’s Application for Judicial Review (Northern Ireland) [2011]
UKSC 18
Keywords Criminal procedure; Miscarriage of justice; Compensation;
New evidence; Damages
Section 133 of the Criminal Justice Act 1988 provides for compensation
by the Secretary of State of those whose convictions have been quashed
in a narrow set of circumstances: on appeals out of time or on a
reference by the Criminal Cases Review Commission (CRCC), when a
new or newly discovered fact shows beyond reasonable doubt that there
has been a miscarriage of justice. The previous leading case of R (on the
application of Mullen) vSecretary of State [2004] UKHL 18 presented
differing views as to whether applicants had to establish factual inno-
cence to warrant compensation under the scheme, with Lord Steyn
finding that they did and Lord Bingham indicating that miscarriage of
justice is a somewhat wider concept. The recent judgment in the con-
joined appeals of the present case required the Supreme Court to
address this perceived conflict and clarify the meaning of miscarriage of
justice under the statute.
A was convicted of murder in 1993 and sentenced to life imprison-
ment. His in-time appeal was dismissed in 1998. After a referral to the
Court of Appeal by the CCRC, his conviction was quashed in 2007 on
the grounds that deficient defence representation had resulted in an
unsafe verdict. At issue was material not used at trial—some of which
had been disclosed by the prosecution—which could have been used in
cross-examining the key witness against A and police officers who
supported the witness’s evidence. In quashing the conviction, the Court
of Appeal ‘was not to be taken as finding that . . . the appellant would
inevitably have been acquitted’ (R vAdams [2007] EWCA Crim 1 at
[157]). After his claim to the Secretary of State for compensation was
unsuccessful, A sought judicial review of the decision. The Court of
Appeal affirmed the Divisional Court’s dismissal of the application.
Dyson LJ held that the unused material was in fact ‘new or newly
discovered’—although it was knowable to the defendant and defence
representatives, it was not known at the time of the trial and in-time
appeal (R (on the application of Adams) vSecretary of State for Justice [2009]
EWCA Civ 1291 at [17]–[18]). Nonetheless, a miscarriage of justice had
not occurred (at [62]). Dyson LJ declined to decide whether s. 133
applies only when applicants have demonstrated innocence or whether
361The Journal of Criminal Law (2011) 75 JCL 361–367
doi:10.1350/jcla.2011.75.5.725
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