The Queen (on the application of Jamie Sneddon) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWHC 3190 (Admin) |
| Date | 06 November 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13092/2009 |
[2015] EWHC 3190 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION0
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Burnett
and
The Hon Mr Justice Hickinbottom
Case No: CO/13092/2009
Matthew Stanbury (instructed by Matthew Gold) for the Claimant
James Strachan QC (instructed by The Government Legal Department) for the Defendent
Hearing dates: 16 October 2015
Introduction
On 5 October 2000 the claimant was convicted at Croydon Crown Court of theft. The jury could not agree on an additional count of unlawful wounding contrary to section 20 of the Offences Against the Person Act 186Following a retrial which finished on 6 December 2000 the claimant was convicted of that additional offence. He was sentenced to 21 months imprisonment for the wounding with two weeks concurrent for the theft. His initial application for permission to appeal was refused, but in 2008 his case was referred to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission ["CCRC"]. On 6 February 2009 both convictions were quashed: [2009] EWCA Crim 430. The victim of the assault and theft, Ian James, had admitted lying in the course of his evidence in a number of material respects. He had been prosecuted for perjury and on his plea of guilty was sentenced to 18 months' imprisonment on 4 December 2007.
On 24 April 2009 the claimant applied to the Secretary of State for Justice pursuant to section 133 of the Criminal Justice Act 1988 ["the 1988 Act"] for compensation on the grounds that he was the victim of a miscarriage of justice. That application was originally refused on 6 August 2009 because the Secretary of State did not accept that there had been a miscarriage of justice for the purposes of that statutory provision. He applied a test which required the new fact to prove conclusively that the claimant was innocent. Judicial review proceedings were issued promptly to challenge the decision on the grounds that the Secretary of State had applied too narrow a test. Pitchford J gave permission on 30 December 2009.
We are considering the substantive application almost six years later because the claim was twice stayed to await the outcome of appeals in other cases which considered the meaning of "miscarriage of justice" for the purposes of section 133 of the 1988 Act. The first was R (Adams) v. Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48. The second was R (Ali) v. Secretary of State for Justice [2013] EWHC 72 (Admin); [2013] 1 WLR 3526 at first instance and [2014] EWCA Civ 194; [2014] 1 WLR 3202 in the Court of Appeal. However, on 24 August 2011, after these proceedings had been commenced, the Secretary of State maintained his decision applying the interpretation of "miscarriage of justice" favoured by the Supreme Court in Adams, which was different from the interpretation he had applied in the 2009 decision.
The legislation and meaning of "miscarriage of justice"
Section 133(1) as originally enacted provided that:
"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."
It was this provision that was interpreted by the Supreme Court in Adams (and considered by the Court of Appeal in Ali). In issue was the reach of the term "miscarriage of justice" and, in particular, whether it extended beyond cases in which the new or newly discovered fact proved conclusively that the applicant for compensation was innocent of the alleged offence. The Secretary of State argued to limit the reach to that type of offence, which in the nomenclature of the cases was identified as a Category 1 case. The Supreme Court held that "miscarriage of justice" for the purposes of statutory compensation pursuant to section 133 also included other cases, referred to as "Category 2" cases. In paragraph 55 of his judgment in Adams Lord Phillips of Worth Matravers, having considered alternative formulations of Category 2, stated it as follows:
"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. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. I find this a more satisfactory outcome than that produced by category 1. I believe that it is a test that is workable in practice and which will readily distinguish those to whom it applies from those in category 3. It is also an interpretation of miscarriage of justice which is capable of universal application."
Category 3 covers "the situation … where the fresh evidence reduces the strength of the case that led to the claimant's conviction, but does not diminish it to the point where there is no longer a significant case against him." (Lord Phillips at paragraph 39) Such cases were held not to fall within the scope of statutory compensation.
Lord Hope agreed with Lord Phillips' formulation of a Category 2 case in paragraph 55 and understood it to mean that "it will have been shown conclusively that the Defendant had no case to answer, so the prosecution should not have been brought in the first place" (paragraph 96). That would include cases in which the conviction depended on a confession which was shown by a newly discovered fact to have been improperly obtained and so was inadmissible. Lady Hale and Lord Kerr also agreed with Lord Phillips' formulation. Lord Kerr's judgment dealt with the appeals of McCartney and MacDermott which were based upon confessions which should not have been admitted. Absent the confessions, there was no other evidence and no case to answer.
Mr Stanbury, who appears for the claimant, submits that the Secretary of State was "bound to conclude, as the prosecution concluded when it did not resist the appeal, that Ian James was not believable on any matter"; and was thus bound to conclude that this was a Category 2 case. Mr Strachan QC for the Secretary of State submits that Mr James did not withdraw or qualify much of his evidence which was central to the convictions. It was also supported by circumstantial evidence. In those circumstances the Secretary of State was entitled to conclude that the newly discovered fact, namely that Mr James had accepted that he had lied about important aspects of the case, did not establish beyond reasonable doubt that no conviction could possibly be based upon the evidence against the claimant.
The amendment to section 133 and its consequences in this litigation
There is an added complication which arises from the chronology of these proceedings. Parliament returned to the meaning of "miscarriage of justice" following the decision of the Supreme Court in Adams.Section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 ["the 2014 Act"] redefined the term to limit its scope to Category 1 cases and also made provision for how the new definition should apply to outstanding applications.
"175 Compensation for miscarriages of justice
(1) In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice) after subsection (1) there is inserted —
"(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales or, in a case where subsection (6H) applies, Northern Ireland, if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).
(2) Subsection (1ZA) of section 133 of the Criminal Justice Act 1988 has effect in relation to —
(a) any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and
(b) any application for compensation made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under subsection (3) of that section."
The relief sought in these proceedings is a quashing order in respect of the decision to refuse compensation. The statutory scheme assigns to the Secretary of State the determination of the question whether there is a right to compensation. An independent assessor then decides quantum. In his pleadings the claimant positively disavowed the suggestion that his case could fall within Category 1. In argument, Mr Stanbury sought to keep open the possibility that this could be a Category 1 case in the event that the earlier decision was quashed and the matter remitted to the Secretary...
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