R (Adams) v Secretary of State for Justice; Re McCartney & McDermott
 UKSC 18
Lord Phillips, President
Lord Hope, Deputy President
Tim Owen QC
Hugh Southey QC
(Instructed by Hickman and Rose)
Robin Tam QC
(Instructed by Treasury Solicitor)
John O'Hara QC
(Instructed by McCartney and Casey)
Paul Maguire QC
David Scoffield BL
(Instructed by Departmental Solicitor's Office)
Eilis McDermott QC
Donal Sayers BL
(Instructed by MacDermott, McGurk and Partners)
Paul Maguire QC
David Scoffield BL
(Instructed by Departmental Solicitor's Office)
Alex Bailin QC
(Instructed by Kirkland & Ellis International LLP)
Intervener (Barry George)
Ian Glen QC
(Instructed by Wells Burcombe)
The three appellants in these two appeals were each convicted of murder. Each had his conviction quashed pursuant to a reference to the Court of Appeal by the Criminal Cases Review Commission ("CCRC") in the exercise of its powers under Part II of the Criminal Appeal Act 1995 ("the 1995 Act"). In each case no order was made for a retrial. Each claimed compensation from the Secretary of State pursuant to section 133 of the Criminal Justice Act 1988 ("section 133"). That section applies to England and Wales, to Northern Ireland and to Scotland. I shall not refer to provisions which cater for differences of procedure in Scotland. The most material part of that section provides:
"(1)…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…"
In each case the claim for compensation was refused by the Secretary of State, whose decisions were upheld on judicial review both at first instance and on appeal. The common issue that arises in relation to each appeal is the meaning of "miscarriage of justice" in section 133. In the case of Adams there is a second issue, which is the meaning of "a new or newly discovered fact".
Lord Hope has set out the background to the statutory right to compensation provided by section 133 and I need not repeat his summary. Lord Kerr has set out in detail the relevant facts in the appeals of Mr MacDermott and Mr McCartney and I gratefully adopt his account of these. It remains for me to summarise the facts relevant to the appeal of Mr Adams. They can be shortly stated. A more detailed summary can be found in the extract of the judgment of Simon J at first instance, annexed to the judgment of the Court of Appeal ; .
The facts in Mr Adams' appeal
On 18 May 1993 Mr Adams was convicted in the Crown Court at Newcastle of the murder of a man called Jack Royal and sentenced to life imprisonment. He appealed to the Court of Appeal and on 16 January 1998 his appeal was dismissed. Some nine years later his case was referred to the Court of Appeal by the CCRC on three grounds. The first, and only material ground, was that incompetent defence representation had deprived him of a fair trial. On 12 January 2007 the Court of Appeal allowed his appeal on this ground.
The relevant shortcomings in the conduct of Mr Adams' defence were, in large measure, the result of a late change of his counsel. This was made when those originally instructed to represent him had to withdraw from the case because of a conflict of interest. Those instructed to replace them were hard pressed to prepare for the trial and failed to consider relevant "unused material". Some of this had been disclosed by the prosecution. Some was available on a computer database known as the Holmes database.
The case against Mr Adams was essentially based on the evidence of a single witness, Mr Kevin Thompson. His evidence was supported by that of two police officers. It was the defence case that Mr Thompson was lying, that he had entered into a deal with the police to give evidence against Mr Adams, and that he had been fed with information about Mr Royal's murder by the police. The evidence which had been overlooked by defence counsel would have provided valuable assistance in cross-examining Mr Thompson and the two police officers. The Court of Appeal concluded that, had it been available and deployed, the jury might not have been satisfied of Mr Adams' guilt. Accordingly the court quashed the conviction, but in doing so stated expressly that they were not to be taken as finding that, if the failings on the part of the defence lawyers had not occurred, Mr Adams would inevitably have been acquitted: at para 157.
Miscarriage of Justice
Section 133(1) reproduces, in almost identical wording, the following provision in article 14(6) of the International Covenant on Civil and Political Rights 1966, which this country ratified in May 1976 ("article 14(6)" of the "ICCPR"). I shall emphasise the material differences:
"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…"
The reference to "a final decision" is accommodated by a provision in section 133(5) which defines "reversed" as referring to a conviction which has been quashed on an appeal out of time or on a reference under the 1995 Act.
The possible meanings of "miscarriage of justice"
The meaning of "miscarriage of justice" in section 133 received consideration by the House of Lords in ; , when rejecting a claim for compensation by Mr Mullen. He had been convicted of terrorist offences. His conviction had been quashed by an appeal out of time. This was not because there was any doubt that he had committed the offences of which he was convicted. His conviction was quashed because he had been seized and brought to this country from Zimbabwe in circumstances that had involved a flagrant abuse of power. It was not suggested that there was any defect in the trial process itself. The House held that in these circumstances Mr Mullen's conviction had not been quashed on the ground of a "miscarriage of justice" within the meaning of section 133. Lord Steyn expressed the view that this phrase only extended to the conviction of someone subsequently shown to be innocent. Lord Bingham of Cornhill expressed doubt as to whether this was correct. Both were agreed that section 133 was enacted to give effect to article 14(6) and that the meaning of the latter should govern the interpretation of the section. They were not, however, agreed as to the meaning of article 14(6). Lord Rodger of Earlsferry accepted the interpretation reached by Lord Steyn. Lord Walker of Gestingthorpe considered that Lord Steyn had given "powerful reasons" for his conclusion, but preferred not to go beyond the limited common ground for allowing the appeal. Lord Scott expressed no view on the difference between Lord Bingham and Lord Steyn.
"Miscarriage of justice" is a phrase that is capable of having a number of different meanings. In giving the judgment of the Court of Appeal in relation to Adams' case Dyson LJ divided the circumstances in which convictions may be quashed on the basis of the discovery of fresh evidence into four categories, which I shall summarise in my own words.
(1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted.
(2) Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant.
(3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.
(4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.
These four categories have provided a useful framework for discussion.
There are relatively few domestic authorities that bear on the meaning of "miscarriage of justice" in section 133 and none which provides a definitive answer. In these circumstances, before considering those authorities, I propose to consider extrinsic sources that might be expected to assist with the interpretation of this phrase.
Mr Bailin QC, appearing for JUSTICE as intervener, submits that a statement made by Earl Ferrers, the Minister of State at the Home Office, throws light on the meaning of "miscarriage of justice". The statement was made in the course of debate on the clause that was to become section 133: see Hansard (HL Debates), 22 July 1988, cols 1630-1632. At the outset Earl Ferrers explained that the object of the clause was to give statutory effect to the United Kingdom's obligations under article 14. Lord Hutchinson of Lullington then asked the very question that lies at the heart of these appeals. He contrasted a new fact which...
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