Restricting Compensation for Miscarriages of Justice to the Truly Innocent Lord Judge's and Lord Brown's Dissents in R (on the application of Adams) v Secretary of State for Justice; Re MacDermott; Re McCartney [2011] UKSC 18

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CHAPTER 18

RESTRICTING COMPENSATION FOR MISCARRIAGES OF JUSTICE TO THE TRULY INNOCENT

Lord Judge’s and Lord Brown’s Dissents in

R (on the application of Adams) v Secretary of State for Justice; Re MacDermott; Re McCartney [2011] UKSC 18

Nicola Monaghan and Tasmin Malcolm

18.1 Introduction 363
18.2 Background facts 364
18.3 The law 366
18.4 Meaning of ‘miscarriage of justice’ 368
18.4.1 Category 1 369
18.4.2 Categories 2 and 3 372
18.4.3 Category 4 374
18.5 Meaning of ‘a new or newly discovered fact’ 375
18.6 Conclusion 375

18.1 INTRODUCTION

In R (on the application of Adams) v Secretary of State for Justice; Re MacDermott; Re McCartney,¹ the Supreme Court was required to consider the circumstances in which an appellant should be awarded compensation following the reversal of his conviction for a criminal offence. The Secretary of State for Justice is ordered to pay compensation to an appellant in certain circumstances

¹ R (on the application of Adams) v Secretary of State for Justice; Re MacDermott;

Re McCartney [2011] UKSC 18.

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364 Part V – Crime and Criminal Procedure

where there has been a miscarriage of justice. The main issue to be determined in the case was what constituted a ‘miscarriage of justice’ for these purposes. The court considered the question of whether a person who has had a conviction reversed due to the discovery of new evidence should only be compensated if he or she was shown conclusively to be innocent, or whether he or she should receive compensation if, had the new evidence been available, no reasonable jury could properly have convicted the defendant. The importance of this question is evident from the fact that the Supreme Court sat as a specially constituted bench of nine Supreme Court Justices. However, the decision was far from unanimous, the Justices being divided by a 5:4 split. The majority took the latter, wider approach, while the minority favoured the former, more restrictive approach.

This chapter explores the two main factors which influenced the decision of the court: the statutory duty and policy considerations. The first factor relates to the interpretation of the statutory duty of the Secretary of State for Justice under the Criminal Justice Act 1988 (CJA 1988), s 133. In particular, the decision turned on the construction of the phrase ‘miscarriage of justice’ and the relevance (if any) of the inclusion of the words ‘beyond reasonable doubt’ within this section. The Supreme Court also debated the meaning of the requirement that the conviction be quashed due to a ‘new or newly discovered fact’. The second factor relates to competing policy considerations. Should we take a narrow approach by compensating only those who can prove innocence conclusively, such that some innocent people do not receive compensation? Alternatively, should we broaden the categories under which defendants can receive compensation, such that the guilty might receive an award? It will be argued that the preferred approach is the minority view of Lord Judge CJ, Lord Brown, Lord Rodger and Lord Walker, under which only truly innocent defendants who prove beyond reasonable doubt that they are innocent could claim compensation. It is submitted that on a literal approach this is the true interpretation of s 133 and that this more restrictive line should be adopted on policy grounds.

18.2 BACKGROUND FACTS

This case involved an appeal to the Supreme Court by three appellants who claimed compensation from the Secretary of State for Justice after their convictions for murder were quashed by the Court of Appeal. The Secretary of State for Justice refused to award compensation to any of the three appellants and they consequently sought a judicial review of this decision. The decision of the Secretary of State for Justice was upheld at first instance and by the Court of Appeal, therefore, the appellants appealed to the Supreme Court. The appeal

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arose from two separate cases: one involving Mr Adams and the other involving the remaining two appellants, Mr MacDermott and Mr McCartney.

The facts which led to the appeal by Mr Adams were as follows: Mr Adams was convicted of murder in 1993 and sentenced to life imprisonment. His initial appeal to the Court of Appeal was dismissed, but in 2007 the Criminal Cases Review Commission referred his case back to the Court of Appeal on the ground that his legal representation at trial had been incompetent. This ground stemmed from the fact that defence counsel failed to consider relevant unused material which had been disclosed to the defence by the prosecution. The conviction had been based predominantly upon the evidence of one witness, Mr Kevin Thompson, whose testimony was supported by two police officers. The defence case was that Mr Thompson was lying. On appeal, the appellant argued that the ‘unused’ material which defence counsel had failed to consider should have been used in cross-examination and, had it been so used, it would have provided much assistance to the defence case. Consequently, the Court of Appeal decided that Mr Adams’ conviction was unsafe and quashed it.

Mr McCartney was convicted of the murders of Geoffrey Agate and DC McNulty as well as other offences, which are not of relevance here. Mr MacDermott was also convicted of the murder of DC McNulty and other offences. Both appellants were tried before a judge sitting without a jury, and on conviction they were sentenced to life imprisonment. The convictions were based wholly on evidence of written and oral admissions that were said to have been made by the appellants during police interviews. The appellants argued that the admissions had been obtained after ill treatment by the police or that they had been fabricated and an application to exclude the admissions was made to the trial judge. The trial judge was not satisfied that the appellants had been ill treated and he refused to exclude evidence of the admissions. An initial appeal against their convictions was dismissed by the Court of Appeal in Northern Ireland. However, in 2006 the case was referred to the Court of Appeal by the Criminal Cases Review Commission. The Court of Appeal expressed a ‘distinct feeling of unease’ about the safety of the convictions and they were duly quashed.²

As stated above, the claim for compensation under the CJA 1988, s 133 in each case was refused by the Secretary of State for Justice. This decision was upheld by the Court of Appeal on the ground that the appellants had not shown that a miscarriage of justice had occurred. It was also held that because the conviction of Mr Adams had been quashed as a result of the failure of defence counsel to consider unused material, this material did not constitute a new fact or new

² See the opinion of Lord Kerr, above, n 1, at [121].

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evidence. Thus, Mr Adams had additionally failed to show that a new fact or new evidence had caused the reversal of his conviction.

The majority considered that compensation should be awarded to a defendant under the CJA 1988, s 133 where a new fact shows that a miscarriage of justice has occurred, because that new fact ‘so undermines the evidence against the defendant that no conviction could possibly be based on it’.³ The Supreme Court was unanimous in dismissing the appeal of Mr Adams on the basis that, although the new evidence rendered his conviction unsafe, this did not constitute a ‘miscarriage of justice’ for the purposes of s 133. The appeals by MacDermott and McCartney were allowed by a majority, with Lord Judge, Lord Brown, Lord Rodger and Lord Walker dissenting. The majority held that there was a miscarriage of justice in this case for the purposes of s 133. However, those who dissented on this point felt that a much more restrictive approach should be taken to the award of compensation, such that only the truly innocent should be compensated. Lord Judge and Lord Brown provided the two dissenting opinions on this point, with Lord Rodger and Lord Walker agreeing with their dissenting opinions.

18.3 THE LAW

The CJA 1988, s 133 sets out the position as to when compensation should be paid to a person who has had his conviction for a criminal offence reversed or where he has been pardoned. Section 133 states:

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.⁴

The CJA 1988, s 133(2) confers a limitation period for any claims of compensation under s 133 to be made to the Secretary General within 2 years of the date of the reversal of the conviction or pardon. Thus, s 133 requires that a conviction be reversed or the defendant be pardoned on the ground that new facts show beyond reasonable doubt that there has been a miscarriage of justice. This right to compensation prescribed by s 133 was enacted in order to give

³ Above, n 1, at [55].

⁴ The CJA 1988, s 133(1).

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effect to the International Covenant on Civil and Political Rights 1966 (ICCPR), Art 14(6), which was ratified by the UK in 1976. Whilst the wording of the covenant differs slightly to s 133, the majority of the phrase was adopted into English law verbatim:

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...