R Ismail Ali, Ian Lawless, Barry George, Kevin Dennis, Justin Tunbridge v Secretary of State for Justice

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgeand
Judgment Date25 January 2013
Neutral Citation[2013] EWHC 72 (Admin)
Docket NumberCase No: CO/2488/2010;CO/3480/2010; CO/4552/2010; CO/627/2012; CO/629/2012
Date25 January 2013

[2013] EWHC 72 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Beatson

and

Mr Justice Irwin

Case No: CO/2488/2010;CO/3480/2010; CO/4552/2010; CO/627/2012; CO/629/2012

Between:
The Queen on The Application of Ismail Ali, Ian Lawless, Barry George, Kevin Dennis, Justin Tunbridge
Claimants
and
Secretary of State For Justice
Defendant

Stephen Cragg & Ruth Brander on behalf of (1)Ali, (2)Dennis & (3)Tunbridge (instructed by (1)Matthew Gold & Co, (2) &(3) Hodge Jones & Allen) for the Claimants

Ian Glen QC & Gordon Bishop on behalf of Barry George (instructed by Wells Burcombe) for the Claimant

Matthew Stanbury on behalf of Ian Lawless (instructed by Jordans Solicitors) for the Claimant

James Strachan & Sarah Hannett (instructed by the Treasury Solicitor's Department) for the Defendant

Hearing dates: 17 – 19 October 2012

Further written submissions: 22 and 26 October 2012

INDEX

I. Overview

1

II. Summary of issues & outcomes

13

III. Compensation for miscarriages of justice: the legal framework

15

(i) Background

15

(ii) Criminal Justice Act 1988, s 133

22

(iii) The pre- Adams cases

24

(iv) The decision of the Supreme Court

27

IV. Applying the principles in the Adams cases

39

(i)Establishing a case is within category 2

39

(ii) The approach to decisions of the CACD

42

(iii) Procedural and evidential rules

45

(iv) The effect of a retrial

48

(v) Reconsidering previous decisions

50

V. The Role of the Court

51

(i) Common law

51

(ii) ECHR Article 6

65

VI. The Claimants' Cases

73

(i) Ismail Ali

74

(ii) Kevin Dennis

101

(iii) Barry George

140

(iv) Ian Lawless

161

(v) Justin Tunbridge

188

VII. Summary of Decisions

215

I. Overview

1

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.

2

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.

3

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].

4

"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.

5

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".

6

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.

7

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.

8

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.

Category 1: Where the court is sure that the defendant is innocent of the crime of which he has been convicted (as where DNA evidence shows this beyond doubt).

Category2: Where the fresh evidence shows that the defendant was wrongly convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted.

Category 3: Where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair-minded jury could properly convict if there were to be a trial which included the fresh evidence.

Category 4: Where the conviction is quashed because 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.

Dyson LJ stated that category 4 was referred to by Lord Bingham in Mullen's case. In the Adams cases, Lord Kerr ( [2011] UKSC 18 at [179]) did not believe Lord Bingham intended it to be a freestanding category. Indeed, it was only considered in the context of the then extant ex gratia scheme for compensation, which operated alongside the statutory scheme

9

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...

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