Ali & Ors, R (On the Application Of) v Secretary of State for Justice

Lord Justice Maurice Kay: This is the judgment of the Court to which Lady Justice Sharp has made a substantial contribution.

1. 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.

2. 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 48 where the Supreme Court considered two conjoined appeals: by Mr Adams on appeal from the Court of Appeal: References in this judgment to Adams are to the decision of the Supreme Court, unless otherwise indicated. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. The relevant parts of Section 133 provide as follows: Section 133 was amended by section 61(5) of the Criminal Justice and Immigration Act 2008 with effect from 1 December 2008. The words inserted by amendment are shown in italics. “ 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 . […] (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State. (5) In this section “reversed” shall be construed as referring to a conviction having been quashed- (a) on an appeal out of time; (b) on a reference – (i) under the Criminal Appeal Act 1995 ;… […] (5A) But in a case where – (a) a person’s conviction for an offence is quashed on an appeal out of time, and (b) the person is to be subject to a retrial, the conviction is not to be treated for the purposes of this section as “reversed” unless and until the person is acquitted of all the offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial. … […]”

13. Before the decision in Adams, different judicial views had been expressed about when entitlement to compensation under section 133 arose: see R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18 , [2005] 1 AC 1 ; R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin) and R (Allen)(formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808 ; [2009] 1 Cr. App. R. 2.

14. In Mullen , Lord Steyn’s view was that entitlement to compensation arose only where the new or newly discovered fact showed the person concerned was clearly innocent, whereas Lord Bingham’s provisional view was that eligibility could arise in somewhat wider circumstances: see in particular, paragraphs 4, 9 and 56. The prevailing view before Adams, was that expressed by Lord Steyn.

15. In Adams however, it was decided by a majority (five to four) that a miscarriage of justice occurred within the meaning of section 133 not only where a new fact showed clearly that a defendant was innocent of the crime of which he had been convicted (cases described in Adams as category 1) but also in a second category of case (category 2).

16. At paragraph 55 of Adams Lord Phillips proposed the following category 2 test: “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.”

17. Lord Phillips had used as a framework for his discussion of section 133 , the four-fold categorisation of cases by the Court of Appeal in Adams and expressly rejected its formulation of category 2 cases, namely: “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.” See paragraph 19 of the judgment of Dyson LJ where he discussed the four categories described by Toulson LJ when he gave permission to appeal. These were: (i) Where the court is sure that the defendant is innocent of the crime of which he has been convicted (category 1); (ii) 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 (the Court of Appeal’s category 2); (iii) 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 (category 3); (iv) 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 (category 4).

18. It was rightly not controversial before the Divisional Court, nor before us, that though there were some variations as to reasoning of the members of the Supreme Court, and therefore as to the route by which agreement was reached, the category 2 test formulated by Lord Phillips was accepted by the majority of the Supreme Court: see paragraphs 96, 144, 178 and 217 from the judgments of Lord Hope, Lady Hale, Lord Kerr and Lord Clark respectively. After careful analysis, the Divisional Court did not suggest otherwise.

19. However, more controversially, at paragraph 41 of its judgment, the Divisional Court said this: With great deference to Lord Phillips, we suggest that the following formulation [for category 2 cases], derived from those of Lord Clarke and Lord Kerr, carries an identical meaning to the test he formulated, but may be more readily useful to lawyers advising claimants and the Secretary of State: “Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered?”

20. Mr James Strachan QC for the respondent contends the Divisional Court’s own formulation of the test for category 2 cases departs from the test established in Adams and actually introduces one Lord Phillips had expressly rejected (i.e. the Court of Appeal’s formulation of category 2) . He says the practical application of this new test could lead to a different result to the paragraph 55 test (depending on the facts), though not in the event to the cases under appeal. He invites this court to uphold the order of the Divisional Court applying what he submits is the correct test, though in the alternative he submits that the appeals should be dismissed for the reasons given by the Divisional Court. Mr Tim Owen QC for the appellants on the other hand submits the Divisional Court’s analysis of Adams is correct. He describes the respondent’s criticisms as “nitpicking” and misplaced as the appellants’ appeals are not founded on any error in the Divisional Court’s analysis of the test, but on a misapplication of that test to the facts. But whichever formulation is applied, Mr Owen submits the Divisional Court’s ultimate conclusion in respect of each appellant was wrong.

21. We have no doubt that the Divisional Court intended its formulation to be more readily useful in the way described and more sensitive to the trial processes in this jurisdiction (as was said at paragraph 40 of its judgment) but its formulation was not one for which any of the parties before it had contended and, with respect, we consider the Divisional Court was wrong to propound it.

22. Adams was intended to identify the correct test and provide guidance to those who have to consider the application of section 133 , including the Secretary of State, and any lower court which has to decide whether the refusal of compensation in a particular case is unlawful. There was indeed explicit acknowledgement by the Supreme Court that it was important that there should be clarity as to the correct test.

23. It is true, as we have said, that it could not be said that there was unanimity as to the reasoning of the majority. Although Lord Kerr and Lord Clarke ultimately agreed with Lord Phillips’s formulation of the category 2 test, their reasons for doing so differed from those given by Lord Phillips (with whom Baroness Hale agreed) and by Lord Hope. Lord Hope agreed with Lord Phillips’ definition of miscarriage of justice and concluded (at paragraph 96), that in such cases it would have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place. Lord Kerr (at paragraph 178) said he was content to subscribe to the test proposed because in his view it would achieve the same result as that which he proposed (“whether on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that the applicant should not have been convicted”); and Lord Clarke (at paragraph 217) said that he considered the test Lord Phillips proposed to be consistent with the Court of Appeal’s category 2 test, because in such a case no reasonable jury properly directed could convict the defendant.

24. It does not follow from this, however, that the identification of category 2 itself is not straightforward, as the Divisional Court suggested, nor that it was open to the Divisional Court to formulate a different test, based on one preferred by Lord Clarke.

25. This is not a mere matter of semantics, or nit-picking as Mr Owen submits. The Divisional Court’s formulation is very similar to the test Lord Phillips had expressly rejected for the reasons explained by him at paragraphs 51 to 54 of Adams , and in our view is apt to encourage the sort of application which both Lord Phillips and Lord Hope said they wished to avoid i.e. applications which amount in effect to submissions of no case to answer. This is not a view we have formed in the abstract; it is based in part at least on the nature of the submissions made by the appellants on the merits issues considered during the course of this appeal.

26. As a result, the Divisional Court’s test is capable of undermining the important distinction between the role of the Secretary of State when determining an application for compensation under section 133 , and that of the courts when quashing the conviction under consideration, a matter of significance to the decision in Adams : see Lord Phillips (at paragraphs 36 and 46), Lord Hope (at paragraph 101), Lord Kerr (at paragraphs 169 and 178), Lord Judge (at paragraph 240) and Lord Brown (at paragraph 274, 277 and 282). Similarly, it is also apt in our judgment, to lead to unmeritorious applications for judicial review. We note in this context that there is no appeal against the Divisional Court’s rejection of the substitutionary approach advocated on behalf of the appellants below, a decision it came to in view of the wording of section 133(3) and the inconsistency of such an approach with the reasoning in Adams .

27. Putting it at its simplest, a new or newly discovered fact may lead to a conviction being quashed by the CACD because the evidence pertaining to it is capable of belief, and it undermines the safety of conviction. The test as to whether a miscarriage of justice has occurred within the meaning of section 133 however is not the same. Nor is it the same as that which a judge would apply when deciding whether there is a case to answer at the close of the prosecution case, assuming hypothetically that the new or newly discovered fact was part of the evidence to be considered. The test is that decided on in Adams . In making his determination the Secretary of State is required to make a decision by applying the statutory test in accordance with the guidance in Adams to the facts of the particular case, which can include events which post date the quashing of the conviction in the event that further facts of relevance to the application of the statutory test arise. He may come to his own view, having regard to the terms of the CACD’s judgment quashing the conviction, and provided the decision does not conflict with that judgment. The decision is then amenable to judicial review on conventional grounds of challenge, not merely because the court would have reached a different view. Save in exceptional circumstances, it should not be necessary for the court to engage in a detailed review of the facts.

28. It may be that in an extreme case, there is only one rationally correct conclusion as to the result of the application of the statutory test and that the cases of Mr MacDermott and Mr McCartney analysed by Lord Kerr in Adams fall into this category. But See in particular, paragraphs 125, 152, 153, 158, 165 and 167 of the judgment of Lord Kerr in Adams . The only evidence against Mr MacDermott and Mr McCartney (the defendants) at their criminal trial was confession evidence, the admission of which was contested at their trial on the grounds of their ill-treatment at Omagh Police Station. The prosecution challenged the evidence of a third man, Mr Donnelly, arrested at the same time as the defendants, that his confession at Omagh Police Station had also been obtained by ill-treatment. At trial, it was known that the charge against Mr Donnelly had not been proceeded with, but not that this was because the DPP had concluded Mr Donnelly had been assaulted by the same officers accused of assaulting the defendants. The trial judge held that the confession evidence against the defendants was admissible. The Supreme Court held the newly discovered fact – the conclusions of the DPP - so undermined the evidence against the defendants that no conviction could possibly be based upon it, and accordingly they had demonstrated that a miscarriage of justice had occurred within the meaning of section 133 . the existence of such exceptional cases is not determinative of the nature of the court’s role in all cases as the Divisional Court observed when rejecting the argument that Lord Kerr’s analysis supported the substitutionary approach. It also does not mean that the Secretary of State’s decision is amenable to challenge by judicial review on anything other than ordinary public law principles. Reconsideration (Mr Dennis and Mr Tunbridge)

29. Following the decision in Adams, the Secretary of State adopted a policy of declining to reopen decisions on compensation taken previously, unless the request to revisit was made within three months of the original decision (i.e. within the judicial review time limit under CPR 54.5) or an actual or threatened application for permission to seek judicial review had been delayed by agreement to await the decision of the Supreme Court in Adams . The renewed applications of Mr Dennis and Mr Tunbridge did not fall into either category, in contrast to that of Mr Ali whose application was delayed by agreement. The Secretary of State therefore refused to reconsider their applications and the Divisional Court concluded this refusal was lawful. Mr Owen submits that it was wrong to do so.

30. Mr Owen’s principal submission is that the policy adopted was grossly unfair: it was arbitrary and failed to ensure that like cases are treated similarly. There was he says no basis for a different approach to the cases of Mr Dennis and Mr Tunbridge on the one hand and that of Mr Ali on the other .

31. In our view, the Divisional Court was right to reject the challenge to the policy adopted, and to conclude that the respondent had acted lawfully in his approach to reconsideration.

32. The starting point is that as a matter of general principle a public law decision which is not successfully challenged is presumed to be valid and effective, unless and until it is set aside by a court of competent jurisdiction: see the judgment of Sir John Donaldson MR in R v Hertfordshire County Council, ex parte Cheung (1986) The Times, 26 March 1986.

33. Cheung was concerned with the effect of the judgment in R v London Borough of Barnet, ex p. Shah [1083] 2 A.C. 309 in which the House of Lords determined that, contrary to what had previously been understood to be the position, a person ordinarily resident in UK was eligible for a student grant, regardless of his immigration status.

34. The point of principle to be derived from Cheung, as the passage from the judgment of Sir John Donaldson MR, set out below and cited by the Divisional Court (at paragraph 210 of its judgment) makes clear, is that if there is a change in the law, or the law is suddenly “discovered”, the decision-maker may adopt a policy for reconsideration of previous decisions, as long as that policy is lawful: “Order, counterorder, disorder” is of the essence of good public administration. If the law is changed or suddenly discovered, it is right that it should be applied in its new form thereafter, but if it is to be applied retrospectively, this must be subject to some limitation. Quite what limitation should be applied would depend upon the particular circumstances. In the field of private law, retrospective action is controlled by the statute of limitations and the doctrine of laches. In the field of public law, it is controlled in the absence of any statutory provision by the exercise of the court’s discretion.”

35. Mr Owen argues that the decision of the Divisional Court was based on a misunderstanding of Cheung because, as at paragraph 210, it referred to the wrong cut-off point which applied in Cheung . This had been when leave to apply for judicial review was first given in the test cases in Shah , rather than when leave to appeal was given in the test cases. The Divisional Court’s error is understandable because a similar one was made in a document quoted in Cheung which was then referred to by the Divisional Court. We note also that the discrepancy was not drawn to the attention of the Divisional Court before it handed down its judgment, as it should have been.

36. More importantly however, the error is immaterial. First, Cheung did not decide that a particular time limit period for reconsideration must always be adopted, let alone the one which the court held should be applied on the particular facts of that case. Secondly, in our judgment the point of principle to which we have referred (at paragraph 34 above) was correctly identified and then applied by the Divisional Court to the issues it had to consider, which included the respondent’s reasons for adopting the policy.

37. These included the principle of legal certainty, that good administration requires the decisions on compensation to be dealt with within a relatively short period of time (a matter implicit in the statutory scheme, as is to be inferred from the introduction of a statutory time limit of two years for such claims ) and the avoidance of detriment to good administration that can arise from old potential claims for compensation being advanced or reopened. See footnote 2 above. The limitation period begins with the date on which the conviction of the person concerned is reversed or he is pardoned.

38. Further, it was not the case post- Adams that earlier decisions on compensation were necessarily erroneous; only that entitlement to compensation is not confined to cases where the applicant is demonstrably innocent. To this extent, we do not consider the position to be analogous to that which arose in Cheung as Mr Owen submits. There the local authority had no discretion to withhold an award from those who qualified for one and it was therefore possible to say with certainty after Shah whether any particular applicant was qualified for an award or not.

39. In our view the facts do not support Mr Owen’s contention that the Secretary of State’s approach to the cases of Mr Dennis and Mr Tunbridge on the one hand, and to that of Mr Ali on the other was inconsistent and unfair, on the footing that Adams could properly be regarded as a test case from the point when he first applied for judicial review (1 August 2008), and therefore that Mr Dennis and Mr Tunbridge, whose claims were made after that date, should have had similar offers to that made to Mr Ali to have consideration of their claims deferred pending its outcome.

40. The short point is that the Secretary of State’s response to each of the claims was a proper one based on the law as it was currently understood; and Adams could not sensibly have been regarded as a test case when the original claims of Mr Dennis and Mr Tunbridge were made.

41. When Mr Tunbridge’s application for compensation was refused on 17 October 2008, there was a lack of judicial agreement as to the categories of those entitled to compensation under section 133 ; and whether – to put it broadly - the narrower approach of Lord Steyn or the potentially broader one of Lord Bingham in Mullen was to be preferred. The Secretary of State’s summary grounds of response of 10 February 2009 to Mr Tunbridge’s application for judicial review were nuanced: they dealt with (and rejected) the challenge by reference to both the wider and narrower approaches. Mr Tunbridge’s subsequent application for permission to apply for judicial review was refused on the facts, by reference to the approach in the subsequently decided case of Clibery.

42. Likewise, the Secretary of State’s response to Mr Dennis’s pre-action protocol letter of the 8 June 2009 rejected the claim, having considered it in the light of the wider and narrower approach in Mullen . By this stage the case of Allen had been heard in the Court of Appeal, and permission to appeal to the House of Lords had been refused. The Divisional Court handed down judgment in Adams on the 4 February 2009, applying the approach in Allen .

43. When the judgment of the Court of Appeal in Adams was handed down on 27 November 2009, the discrepant approaches of Lord Steyn and Lord Bingham were not the central issue: rather it was what constituted a newly discovered fact within the meaning of section 133(1) . In contrast, by the time Mr Ali’s claim came to be dealt with, it was known that the applicant in Adams was seeking permission to go to the Supreme Court raising the section 133 categorisation issue amongst others. We agree with Mr Strachan that it would be completely artificial in the light of the history to treat Adams as a test case from any earlier stage, let alone, arbitrarily as it seems to us to select the date when Mr Adams first applied for judicial review as the ‘correct’ cut-off point for reconsideration.

44. We do not accept the further argument that the Divisional Court erred by recasting the issue as whether the respondent was required to reconsider the decision. As Mr Strachan submits, there was nothing exceptional about the claims of Mr Dennis or Mr Tunbridge. Mr Tunbridge could have done what Mr Adams did and appealed the refusal of his application for permission to seek judicial review; as for Mr Dennis, it is difficult to see why the mere fact of sending a letter before claim should have put him in a better position than potential applicants who did nothing.

45. In the circumstances, we do not accept that Mr Dennis and Mr Tunbridge were treated unfairly, whether generally, or in relation to Mr Ali; and we are far from persuaded that the Divisional Court was wrong to reject the contention that there was anything unreasonable, irrational or unlawful in the ‘time limit’ to be applied to applications for reconsideration post- Adams . Fresh applications (Mr Dennis and Mr Tunbridge)

46. Although raised as a separate ground of appeal (ground 2), the ‘fresh application’ argument was argued before us as an aspect of the argument on fairness. The genesis of the argument, is that the application forms filled in by Mr Dennis and Mr Tunbridge after Adams was decided envisaged that repeat applications could be made; it followed that the Secretary of State had acted unlawfully in refusing to recognise his discretion in this respect, and that this was a matter the Divisional Court had wrongly failed to consider.

47. We have already addressed and rejected the argument that Mr Dennis and Mr Tunbridge were dealt with unfairly. However, in any event, we consider that this further argument is misconceived. The respondent had a policy not to reconsider previous decisions to refuse compensation, except where a further new or newly discovered fact comes to light that was not previously available or presented to the respondent at the time of the original application. The appellants have not challenged the lawfulness of this policy.

48. The only change which took place between the first applications for compensation by Mr Dennis and Mr Tunbridge, and their second ones, was the decision in Adams but this did not constitute a new or newly discovered fact for these purposes: see R (on the application of Bateman and Howse) v Secretary of State for the Home Department (1994) 7 Admin LR 175, applied in Re McFarland [2004] UKHL 17 at paragraph 11.

49. It is not contended by Mr Dennis or Mr Tunbridge that anything else had to come to light since their first applications which was new for the purposes of section 133 ; and the mere structure of the application form (which asked whether previous applications had been made and for new information) provides no basis for the suggestion that repeat applications were envisaged absent a relevant change in position, or for disturbing the judgment below. Judicial review of the original decisions

50. It is said on behalf of Mr Dennis and Mr Tunbridge that the lawfulness of the original decisions on judicial review, made on 7 April 2009 and 17 October 2008 respectively, were separate and independent questions which the Divisional Court erred in failing to address. Mr Owen says further for Mr Dennis that the Divisional Court effectively found the section 133 category 2 criteria were met on the merits in his case. The Divisional Court granted permission to apply for judicial review to the appellants on all grounds. It could therefore only withhold relief in his case if it considered whether to exercise its discretion to extend time, which it did not do. In this respect, at least for Mr Dennis, he says this ground of appeal matters, contrary to the view of Laws LJ who refused Mr Dennis and Mr Tunbridge permission to appeal on this ground (ground 3), on the basis that it added nothing to the grounds of challenge for which he gave permission.

51. We find this argument, which is based on what would amount to a technical side wind rather than the merits, unpersuasive and would refuse permission. At the substantive hearing itself permission was given so all points in contention between the parties on the five selected cases could be argued. The situation is not analogous to one where the court extends time at the permission stage, because it considers good reason has been shown for doing so, an issue which does not then fall to be reopened at the substantive hearing: see R v Criminal Injuries Compensation Board ex parte A [1999] 2 A.C. 330 at 341 B-F.

52. There is no doubt, as is made clear in Cheung, that the court has discretion to extend time under the Civil Procedure Rules; and that the Divisional Court had such a discretion in this case. However it is inherent in its judgment that there was no unlawfulness in the respondent’s response to the claims; and we think the suggestion that this was a case where the court might have exercised its discretion in favour of Mr Dennis and Mr Tunbridge as unrealistic at best, and fanciful at worst.

53. It follows from our rejection of the grounds considered thus far that the appeals of Mr Dennis and Mr Tunbridge must be dismissed. Although it is not necessary for the disposal of their appeals, we will nonetheless address some of the further arguments advanced before us on their behalf. The merits

54. The Divisional Court upheld the stance of the Secretary of State in relation to the merits of Mr Tunbridge and Mr Ali’s claims, and our conclusions on this aspect of the case (grounds 4 a and 4 b of the appeal) are straightforward. We think the Divisional Court came to the right conclusion, for the reasons it gave, albeit by reference to the wrong test. None of the matters relied on by Mr Owen seem to us to come close to establishing that the Secretary of State’s conclusions that these were not category 2 cases were irrational, or that the Divisional Court was wrong to conclude otherwise. On the contrary, there were perfectly rational reasons for the Secretary of State to conclude that their claims failed (or would have failed in the case of Mr Tunbridge) to qualify for compensation under section 133 ; and that, had the fresh evidence been available at the time of the trial, a reasonable jury might or might not have convicted i.e. that if these cases fell into any category, it was into category 3 rather than category 2. We should add that the respondent’s position with regard to the merits issues arising in respect of Mr Tunbridge and Mr Dennis was that there was no obligation to consider either case on the facts, as the applications were out of time. Without prejudice to that primary position, the hypothetical position that would have been adopted on the facts was set out, for the assistance of the court.

55. In relation to Mr Tunbridge, Mr Owen relies principally on two matters. First, the statement of the witness (Miss G) who claimed the complainant at his trial for indecent assault had admitted to her that she lied to secure his conviction; and secondly, on matters relating to the credibility of the complainant, which arose after the conviction. This evidence, submits Mr Owen, “holes the prosecution case below the water line.” We are unable to accept that it did so, even if the matter is looked at in that way, rather than through the correct prism of Lord Phillips’ test. When Miss G’s allegation was put to the complainant she strongly denied she had made any such admission, and said Miss G was the former girlfriend of Mr Tunbridge, and therefore effectively “under his thumb”: in other words, she had a motive to lie for his benefit. That Miss G’s statement was the main plank for quashing his conviction meant only that it was capable of belief; not that this was a category 2 case, an issue to which a different test applies.

56. As for the matters of credibility post-dating the conviction, although each assessment is fact-sensitive, we think it would be exceedingly rare for matters going to the credit of a witness who gave evidence at trial, to be material to an assessment by the Secretary of State of the merits of a claim under section 133 . In the event, at best, the matters highlighted by Mr Owen would have been for a jury to resolve in the light of the other evidence in the case, including, the forensic evidence which was capable of supporting the prosecution’s case as to precisely what had occurred. They would have provided no grounds for the Divisional Court to interfere with the assessment of the Secretary of State or for this Court to interfere with the decision below.

57. We take the same view of the matters relied on in relation to Mr Ali, though in his case the respondent’s assessment was not hypothetical. After his conviction he produced a composite of various recordings transferred by him to a digital disc, purporting to be of his wife speaking to him on the telephone, in which the speaker purported to admit she had lied at the trial and had deliberately inflicted the head injuries she sustained upon herself. His evidence that this was a true recording was capable of belief, and this was sufficient for Mr Ali’s conviction to be quashed. It did not follow however that his was a category 2 case (still less a category 1 case, as was initially submitted before the Divisional Court). The issue as to the authenticity of the recordings demonstrably remained at large.

58. The inability of the Crown Prosecution Service to secure the wife’s attendance at the conviction appeal was not a feature of the CACD’s decision to quash his conviction, but in any event took the matter no further. The wife gave the prosecution a statement before the appeal in which she denied that the recording was of her. Her subsequent non-attendance at the CACD hearing could have been for any number of reasons. The Secretary of State was not required to speculate whether she would have then attended at a hypothetical retrial, in order to resolve the application for compensation Mr Ali made after his conviction was quashed.

59. Mr Dennis falls into a different category to Mr Tunbridge and Mr Ali. He does not challenge the Divisional Court’s analysis of the facts of his case because as we have already indicated, he says, properly understood, it concluded his case fell within category 2 on the facts. The main focus of his challenge therefore was on the issue of reconsideration. As this challenge has failed, it is not necessary for us to express our views on the merits issue except briefly in relation to two matters raised in the respondent’s notice. These are, first, Mr Strachan’s criticism of the Divisional Court’s approach to the facts relating to Mr Dennis’s case, (at paragraphs 47, 129 and 131 of its judgment), which he says is the product of an approach which is inconsistent with that of the majority in Adams . Secondly, Mr Strachan’s further (fall-back) contention that whilst Mr Dennis’s claim fell to be dismissed on the reconsideration issue, it would also fall to be dismissed on the correct approach to the interpretation of section 133(5) of the CJA 1988 .

60. As to the first matter, we see some force in those criticisms because it seems to us that the Divisional Court’s own test led it to adopt an approach which was inconsistent with one of the reasons given by Lord Phillips for rejecting the Court of Appeal’s category 2 test (that it would have required the respondent to perform the “difficult judicial task” of deciding whether evidence was inadmissible: see paragraph 52 of Adams ); and thus caused it to test the (hypothetical) view of the respondent on the merits in the wrong way. The Divisional Court’s view (at paragraph 47) that the respondent could depart from the rulings of judges on the admissibility of evidence “only in the rarest of circumstances and only on a fully reasoned basis,” may well reflect what will happen in practice but, if prescriptive, conflicts both with what was said by Lord Phillips and with Lord Hope’s expression of unease in requiring the respondent, whose task it was to administer the compensation scheme under statute, to apply a test which refers to what the reasonable jury would do, as that was a judgment best left to the courts: see paragraph 101 of Adams. We should add that we would not have regarded an assessment by the respondent that Mr Dennis’s case did not fall into category 2 but into category 3, as either irrational or unreasonable.

61. As for the second matter, the argument for the respondent before the Divisional Court was that the wording of section 133 (5A) of the CJA 1988 precluded any claim by Mr Dennis, because his conviction for violent disorder was never reversed or challenged.

62. Section 133 (5A) has to be read with the amendment made at the same time to section 133(2) , which inserted a time limit for making an application for compensation under section 133 and changed the timetable as to when a person’s conviction was to be taken to have been reversed in a case where a retrial is ordered: see Lord Hope in Adams (at paragraph 103).

63. The Divisional Court concluded (at paragraphs 132 to 134), that if that passage applied to Mr Dennis’s case, it would have provided a complete answer to his claim for compensation. Mr Dennis remained convicted of violent disorder for attacking the man who was killed in the ensuing melee. It said: “it would be quite impossible to suggest that a conviction for violent disorder in relation to an episode giving rise to a murder charge should not be a complete bar to compensation.” However section 133 (5A) did not apply because Mr Dennis’s application for compensation was made before section 133 (5A) came into effect.

64. None of these conclusions have been the subject of challenge in the grounds of appeal or in the respondent’s notice. Instead, the respondent argues, albeit briefly, for the same result it contended for below, but via a different route. Mr Strachan says it is inherent in section 133(5) of the CJA 1988 and in category 2 as formulated by the Supreme Court in Adams that the conviction for violent disorder precludes Mr Dennis’s claim for compensation. The matter does not fall for decision, as we have said, and in the circumstances we shall limit our observations to the following.

65. Sections 133 A and 133(4A) of the CJA 1988 provide for the assessor to take other convictions into account in determining the quantum of compensation. Nonetheless, we are inclined to agree with Mr Strachan’s submission that the reference to “no conviction” in the category 2 test in Adams means what it says: it restricts payment of compensation to those cases where the Secretary of State is satisfied beyond reasonable doubt that no conviction could possibly be based on the remaining evidence. Thus compensation is not payable where a person either remains convicted or could have been convicted for an offence arising out of the same incident: if, for example, a person could not have been convicted of murder, but could have been convicted of manslaughter, the test would not be satisfied. We do not consider there is any possibility that this construction would, realistically, exclude from the ambit of those otherwise entitled to compensation, someone whose conviction for murder, for example, was quashed out of time, but who remained convicted of a minor transgression arising out of the same facts as Mr Owen submits.

66. We also think that it would be irrational if entitlement to compensation depended on whether or not a retrial had taken place: so someone in the same factual position as Mr Dennis (where his conviction for murder was quashed, and who was acquitted of murder at a retrial, but who remained convicted of violent disorder) would not be entitled to compensation, whereas such a person would be entitled to compensation if no retrial was ordered. Conclusion

67. In the light of the conclusions we have reached, we dismiss these appeals. Coda

68. We were referred during the course of the hearing to clause 151 in the Anti Social Behaviour, Crime and Policing Bill currently being considered by Parliament, which, according to the Explanatory Notes, proposes reversing the effect of Adams and the decision of the Divisional Court in this case. We were also referred to the speech of Lord Hope during a debate on the clause in the House of Lords on 12 November 2013, in which he expressed the view that he would have hoped that Adams had “settled the matter” (that is, the meaning of a miscarriage of justice for the purposes of section 133 ) but the Divisional Court’s formulation of the category 2 test did not fit very well with the decision in Adams if at all. These matters are obviously of interest, but they played no part in our consideration of these appeals.