R (on the application of Ismail Ali, Kevin Dennis, Justin Tunbridge) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay |
| Judgment Date | 27 February 2014 |
| Neutral Citation | [2014] EWCA Civ 194 |
| Docket Number | Case Nos: C4/2013/0623; C4/2013/0622; C4/2013/0624 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2014 |
[2014] EWCA Civ 194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen's Bench Division
Divisional Court
Beatson LJ and Irwin J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Patten
and
Lady Justice Sharp
Case Nos: C4/2013/0623; C4/2013/0622; C4/2013/0624
Tim Owen QC and Ruth Brander (instructed by Hodge Jones & Allan LLP for Kevin Dennis and Justin Tunbridge, and Matthew Gold & Co. Ltd. for Ismail Ali) for the Appellants
James Strachan QC and Sarah Hannett (instructed by The Treasury Solicitor) for the Respondent
This is the judgment of the Court to which Lady Justice Sharp has made a substantial contribution.
Section 133 of the Criminal Justice Act 1988 (section 133) as amended provides a statutory entitlement to compensation to persons whose criminal convictions have been reversed in out-of-time appeals or where they have been pardoned, on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice; and for the question as to whether there is a right to such compensation to be determined by the Secretary of State. The provision was introduced to give statutory effect to the United Kingdom's obligations under article 14(6) of the International Covenant on Civil and Political Rights ("the ICCPR") which was adopted by the General Assembly of the United Nations on 19 th December 1966 and ratified by the United Kingdom on 20 th May 1976.
The meaning and effect of section 133 and, in particular, what is meant by the phrase "miscarriage of justice" has been considered in a number of cases at appellate level, most recently in R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 481 where the Supreme Court considered two conjoined appeals: by Mr Adams on appeal from the Court of Appeal: R (Adams) v Secretary of State for Justice [2009] EWCA Civ 1291; [2010] QB 460; and by Mr MacDermott and Mr McCartney from the Court of Appeal in Northern Ireland: In re MacDermott's and McCartney's Application for Judicial Review [2010] NICA 3; [2010] NIJB 316.
In the wake of the decision in Adams the Administrative Court (Irwin J) ordered that five cases, including those of the appellants, presenting different factual scenarios in which applications for compensation under section 133 had been refused by the Secretary of State and where the decision was challenged by an application for judicial review, should be heard at the same time.
The appellants had each been convicted of criminal offences, served sentences of imprisonment (in whole or in part) and then had their convictions reversed by the Court of Appeal Criminal Division (the CACD). Mr Ali and Mr Tunbridge were not subject to retrials after their convictions were quashed. Mr Dennis was retried, but was acquitted after his retrial was stopped at half-time.
The decision in Adams led to an application by Mr Dennis and by Mr Tunbridge to the Secretary of State to reconsider their applications for compensation under section 133, which had earlier been refused. Mr Ali's claim for compensation was deferred by
agreement with the Secretary of State pending the outcome of the hearing before the Supreme Court.The Divisional Court (Beatson LJ and Irwin J) by order dated 8 th February 2013 dismissed the appellants' applications for judicial review. It rejected the claim by Mr Dennis and Mr Tunbridge that the Secretary of State's refusal to reconsider their claims and/or to consider the fresh claims was unlawful; and in any event, held that the Secretary of State was entitled to conclude that the claim of Mr Tunbridge would not have qualified, and that of Mr Ali did not qualify for compensation.
Permission to appeal was granted to each appellant on the grounds they advanced, except to Mr Dennis and Mr Tunbridge on one ground (ground 3) in respect of which they renew their applications for permission to appeal.
The facts which gave rise to the claims of each appellant have been set out in the admirably comprehensive judgment of the Divisional Court. Only a brief summary of these matters is therefore necessary; the detail is contained in the relevant paragraphs from the Divisional Court's judgment, which are set out as an appendix to this judgment.
On 18 December 2002 at the Central Criminal Court Mr Dennis was convicted (with three others) of the murder of Babatunde Oba and of violent disorder. He was sentenced to life imprisonment for murder, with a sentence of 4 years' imprisonment for the offence of violent disorder, to run concurrently. On 26 March 2004, the CACD quashed his conviction for murder on an appeal made out of time; there was no appeal against the conviction for violent disorder. He was retried for murder, and on 9 March 2005 just before the close of the prosecution case, the judge ruled that there was no case to answer. On 6 October 2008, Mr Dennis applied for compensation under section 133 and on 7 April 2009 the respondent refused his claim. On 15 May 2009 Mr Dennis sent a pre-action protocol letter in respect of the decision, stating his intention to seek judicial review of the refusal, to which the respondent responded on 8 June 2009. No application for judicial review was then made. On 11 May 2011, after the Supreme Court decision in Adams, Mr Dennis made a further application for compensation. By letter dated 21 October 2011 the respondent declined to reconsider Mr Dennis's claim on the ground that it had been determined on 7 April 2009, no challenge had been made at the time, and the time for making an application for judicial review had long since passed. On 1 December 2011, in a response to a pre-action protocol letter the respondent stated that as there were no new facts he considered that there was no basis for either considering an application or reconsidering the original application.
On 5 September 1995 at the Crown Court at Snaresbrook, Mr Tunbridge was convicted of two counts of indecent assault and sentenced to 9 months' imprisonment on each count. On 17 April 2008 his conviction was quashed by the CACD following a referral of his case to the CACD by the Criminal Cases Review Commission, under section 9 of the Criminal Appeal Act 1995, on the basis that a witness (Miss G) had come forward to say that the complainant (KK) had admitted that she had lied to secure Mr Tunbridge's conviction. On 17 October 2008 the respondent refused Mr Tunbridge's application for compensation under section 133. On 15 January 2009 Mr Tunbridge issued an application for permission to seek judicial review of that decision. It was refused on the papers, then renewed, but finally refused at an oral renewal hearing by Blair J on 9 June 2009. On 17 June 2011 following Adams, Mr Tunbridge made a further application for compensation by letter. On 17 October 2011, the respondent declined to reconsider the decision of 17 October 2008. On 22 December 2011, in a response to a pre-action protocol letter the respondent stated that as there were no new facts which the respondent had not considered, there was no basis for either considering a further application or reconsidering Mr Tunbridge's original application.
On 3 May 2007 at the Crown Court at Luton, Mr Ali was convicted of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The conviction arose out of a domestic argument between Mr Ali and his wife which led to her suffering serious injuries to her head. Mr Ali was sentenced to 12 months' imprisonment. On 11 November 2008 the CACD quashed Mr Ali's conviction on the ground that it was unsafe in the light of new evidence adduced by Mr Ali. On 23 November 2009, his subsequent application for compensation under section 133 was refused. Permission to apply for judicial review was refused on the papers by Treacy J on 22 May 2010. His renewed application for permission to seek judicial review was adjourned pending the decision in Adams. On 29 June 2011, after Adams was decided, Mr Ali wrote contending his claim for compensation fell within the definition of a miscarriage of justice set out by the Supreme Court. On 23 August 2011 the respondent notified him that the decision to refuse compensation was maintained, as it was not considered his claim fell within the definition of a miscarriage of justice.
Section 133, and the decision of the Supreme Court in Adams
The relevant parts of Section 133 2 provide as follows:
..."Section 133-Compensation for miscarriage 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.
[…]
(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of 2 years beginning with the date on which the conviction of the person concerned is reversed or he is pardoned.
[…]
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