England and Wales Court of Appeal (Civil Division) Decisions

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
[2013] EWHC 72 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2014

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 ^[1] 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.
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^[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.

[…]

(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." ^[3]
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.^[4] But 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^[5]) and the avoidance of detriment to good administration that can arise from old potential claims for compensation being advanced or reopened.
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 AC 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 133A 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.
Appendix

R (on the application of) v Secretary of State for Justice v Ali & Ors [2013] EWHC 72

(i) Ismail Ali

69. On 3 May 2007 before the Luton Crown Court, the claimant was convicted of assault occasioning actually bodily harm upon his wife. On 1 June 2007 he was sentenced to 12 months imprisonment. On 11 November 2008, his conviction was quashed by the CACD: see R v- Ismail Ali [2008] EWCA] Crim 2757.
70. The claimant applied for compensation under the 1988 Act on 1 May 2009 and the Secretary of State finally refused compensation in a letter dated 23 August 2011.
71. The charge against the claimant related to an offence on 28 July 2006. The claimant married his wife in February 2002. It was an arranged marriage and the couples' families were related. There were two children. By the summer of 2006, it was common ground that the marriage was not happy.
72. On 28 July 2006 there was a dispute between the parties after a visit to the family home from the claimant's cousin, who had arrived to teach Mrs Ali how to use a sewing machine. As soon as the cousin left, an argument broke out. The claimant admitted that he smashed the sewing machine onto the floor. The prosecution case was the claimant then assaulted his wife causing three cuts to her head, and that he had done so by grabbing her by the neck and dragging her into the kitchen, forcing her head to make contact with the kitchen sink. The defence case was that the claimant's injuries were self inflicted when he was not in the room.
73. In support of the Crown, Mrs Ali gave evidence through a video link. Her account was that having picked up the sewing machine and flung it to the ground, the Applicant starting swearing at her in Bengali saying she had ruined his life. After this he had grabbed her by the neck, forced her to the kitchen, pushed her to the sink and at that stage she lost consciousness and only woke up in hospital with cuts to her head. Her recollection of the events was very limited, but she adopted the contents of the police statement she had made as being accurate on the essential ingredients of the story. When she was cross-examined, she agreed that, within their culture, if a Muslim man threatened to divorce his wife, that would be very bad. She agreed that the claimant had mentioned divorce to her in the course of this row more than once. She agreed that if divorce was mentioned that would have greatly upset her. She agreed that by the time of the trial the parties were separated and that by then she wanted a divorce from the complainant. Mrs Ali denied going into the kitchen in the course of these events, taking a knife and holding it near to her stomach, which was the suggestion on behalf of the claimant. She denied that she had gone into the shed in the garden and picked up a hammer, or that she had bolted the kitchen door, or that the claimant had kicked the door in after she had locked it. She was insistent that the claimant had held her by the back of the neck and the hair and had hit her head against the sink. She accepted that there was no bruising and no marks on her neck or on any other part of her body.
74. It was agreed that the complainants' injuries had not been photographed and that there was no forensic evidence to show how the injuries were caused. There was some of the victim's blood on the claimant's clothing. When he came to give evidence he could not say how it came to be there. He suggested it was possible that the blood was transferred onto his clothing when he had tried to give mouth to mouth resuscitation to his wife.
75. There was no other direct witness to the central events. Neighbours gave evidence of hearing the noise of a heated argument or row. The claimant's brother in law lived next door. He had been out with his wife, the claimant's sister, and heard shouting when they returned home. They went into the kitchen of the claimant's house through the open back door and found Mrs Ali lying on the floor with blood coming from her head. The claimant was on the phone to the emergency services. His brother-in-law took over the call because the claimant was so agitated.
76. The claimant's evidence at trial was consistent with the cross-examination of his wife. In the course of the row he said he had threatened his wife with divorce and she became very upset. She picked up the knife and held it towards her own stomach. He remonstrated with her. She put down the knife and went outside to get a hammer. When she came back into the kitchen she bolted the door and was crying and shouting from the kitchen. The claimant was unable to open the door and get into the kitchen. He then went upstairs and saw the complainant lying beside the kitchen window with blood all over her. He then forced his way into the kitchen and called an ambulance. His brother-in-law and sister arrived and assisted him to get help. He denied attacking his wife and he could not explain the banging that one of the neighbours had heard. In the course of his police interview, the claimant agreed that his brother-in-law and sister had been of the view that he had caused his wife's injuries but he could not explain to them what had happened to the claimant because he did not see what had happened and because everyone had been upset.
77. It follows from these facts that the case turned very largely on the credibility of Mrs Begum.
78. The claimant's successful appeal was based on recordings of telephone conversations, after his conviction, said to be between himself and his wife. He himself gave evidence for the purpose of the appeal, describing the circumstances in which the telephone calls were recorded and how and when they were turned in to a transmissible record. A transcript was produced of those conversations. The conversations were interpreted. In anticipation of the CACD hearing, the Crown accepted that "the recordings, when viewed in the round, do contain admissions by the female speaker that false evidence has been given".
79. The force of this evidence depends on how firmly the female speaker can be identified as being the claimant's wife. That identification in turn depends on the evidence as to the provenance of the recordings and secondly on expert evidence comparing the recorded telephone conversations with admitted recordings of the voice of Mrs Ali.
80. The Crown made clear at the appeal that they had real concerns about the evidence, in particular as to the provenance of the recordings. The relevant passage from the Crown's skeleton argument reads as follows:

"6. The Crown does have reservations in this case which they have raised directly with the appellant.

7. The appellant provided an unsigned statement dated 29^th January 2008, indicating that the mobile phone upon which he had recorded "a" conversation had been given to Mrs Begum three week's earlier. The appellant stated that this was a Sony Ericcson Z610 with the number 07882 928827, service provider 3G.

8. In an unsigned and undated statement provided on 18^th April 2008, the appellant indicated that his wife would phone from a withheld number or from 079332 92449; a number she no longer has. The appellant indicated that before giving his wife his handset, he made a download onto a Sony Ericsson K800i of "certain" of these conversations.

9. In an unsigned statement dated 1^st July 2008, the appellant repeated his assertion that he had recorded the relevant conversation on this phone, which he had later given to Mrs Begum. The appellant gave a new number, which he stated he had used and indicated that his wife's number was a Pay As You Go number.

10. The appellant in an unsigned statement dated 30^th July 2008, referred to 11 calls made to Mrs Begum from number 07888 761091 and produced billing records for this new number. He indicated that during the 11 calls he made a recording on his Sony Ericcson 800i which is still in his possession. He has edited these recordings.

11. In short, the appellant has given conflicting accounts of numbers used, the number of phone calls made and the handsets upon which the recording was made. We have had no explanation for the conflict nor can confirm that there is no relevant material on the unedited recordings."

81. The Crown maintained their reservations in submissions to the CACD. The court acknowledged that position and expressed understanding of why the position was adopted. However, it was of course not part of the court's function to explore those reservations beyond establishing that the evidence was capable of belief. The judgment stated:

"… it has not been suggested that [the claimant's] description of the process by which he recorded those conversations and later transferred them into a digital form on a portable disk was inherently implausible or can be shown to be false. [Crown counsel] has also confirmed that the telephone on which those recordings are said to have been made is available and could be produced in evidence if necessary."

82. The CACD then turned to the other key issue, the identification of the voice on the telephone with the claimant's wife. The recordings had been submitted, on joint instructions from the claimant and the Crown, to an expert in forensic speaker comparison, Professor Peter French. He was assisted in his work by Dr Shahela Hamid, an academic linguist and speaker of Sylheti, the language of the recordings. Dr Hamid provided expert advice to Professor French on the variations on spoken Sylheti and helps to locate phonetic and acoustic features for detailed analysis. The critical difficulty for the experts was in obtaining acknowledged recordings of Mrs Begum of sufficient duration and quality to support the comparison.
83. Professor French's report is clear that:

"The technical quality of the telephone recording was fairly good for material of this kind. It contained an extensive sample of speech from the person in question."

He went on to say that:

"The reference recording, however, provided a poor basis for the comparison. Ms Begum alternated between speaking in Sylheti, Standard Bengali and English. Only the Sylheti material could be used in the analysis, as cross-language comparisons are not considered reliable. The Sylheti material amounted to some 1 minute and 8 seconds. The quality of the recording was poor. The signal to noise ratio was low. It was contaminated by extraneous noise and Ms Begum's speech was quiet owing to there being some distance between her and the microphone. Of the 1 minute and 8 seconds only 18 seconds was of sufficient quality to allow for basic acoustic testing. This is a very slender and restricted reference sample capable of supporting only a weak conclusion."

84. Efforts were made to see if an expanded and improved reference recording could be obtained, beyond that initially obtained by the police. However this effort failed for a number of reasons. Tapes of Mrs Begum's evidence at trial were of insufficient quality. Apparently Mrs Begum spoke very softly at trial, and as we have noted above, she gave evidence by video link. As the Crown acknowledged in the course of their skeleton argument, the officer in the case had been unable to locate Mrs Begum despite persistent attempts to do so. The skeleton argument went on:

"The Crown concedes that the court would be entitled to infer that Mrs Begum is avoiding contact."

The experts were thus left to interpret the material they had without any improvement.

85. Professor French's report sets out his methodology as one potentially involving two decisions, the first being consistency and the second distinctiveness. His conclusion as regards consistency was as follows:

"In terms of the restricted set of features present in the reference sample for comparison I have found no differences between the recordings of a kind that would cause me to argue that the women in the telephone call is not Ripa Begum. On the contrary, the voice and speech patterns are consistent with those of Ms Begum in all available significant phonetic, acoustic and linguistic respects."

86. As to distinctiveness, Professor French described the range of conclusions available to an expert from "not distinctive" on a 5 point scale through to "exceptionally distinctive". However, his conclusion on this was:

"In the present case, owing to the lack of published information concerning prevailing norms of pronunciation and prosody for Sylheti, coupled with the limited nature of the reference material, I would not consider it reliable to evaluate the distinctiveness of the features common to the samples."

87. Professor French went on to make two additional points:

"(i) Although it was not part of my instructions in this case, I nevertheless thought it might be helpful to the court if Dr Hamid and I were to sample the conversation at various points for any evidence of play-acting. The reasoning behind this was that, if the speaker was not Ripa Begum, it would have to be an impostor acting out her part for the purposes of manufacturing evidence. The dialogue has all the hallmarks of naturally-occurring conversation – namely, hesitations, interruptions (of self and other), false starts, repetitions and overlapping speech.

(ii) It might also be of relevance in assessing whether the conversations were play-acted for the court to take into account that the conversation Dr Hamid and I examined was 37 minutes in duration. The total duration of the calls is over 3 hours. The court might wish to consider whether it would be feasible for someone to play-act for this length of time."

88. The CACD dealt with the impact of Professor French's evidence in paragraphs 17 to 23 of the judgment. After summarising the state of the evidence their conclusions were as follows:

"22. … [E]ven allowing for the unsatisfactory aspects of the applicant's account, what we have here are recordings of statements made by a woman purporting to be the complainant, in a dialect of Bengali known to be used by the complainant, a voice whose speech characteristics are consistent with those of the complainant, who, moreover, appears to have been engaged in normal conversation in the course of which she discussed (sic) with apparent familiarity the circumstances in which she suffered injury and admits that the injuries were self-inflicted.

23. In our view, the applicant's evidence that the recordings are a true record of conversations between himself and the complainant is capable of belief, and, if believed, would significantly undermine the evidence given by the complainant against him. That, in our view, is sufficient to render the applicant's conviction unsafe. We therefore give leave to appeal and quash the conviction."

89. Following the claim for compensation those acting for the Secretary of State requested a full report of the background from the Crown Prosecution Service. This was provided in early September 2009 and has been disclosed to us. It was not before the CACD. This report reveals that in anticipation of the appeal, the Criminal Appeal Office had allowed the prosecution time to take a further statement from Mrs Begum and to secure the recording of her voice to be used by the expert. Even at that stage, there appears to have been some difficulty in locating Mrs Begum. However, in a statement that was taken from her dated 3 March 2008:

"She confirmed it was not her voice on the recording produced by the Applicant."

The report confirmed that the police were unable subsequently to locate Mrs Begum but that, had she been available to give evidence, her attendance before the CACD would have been requested. The report emphasised that the Crown flagged up to the court the conflicting accounts as to the provenance of the telephone recordings coming from the claimant. The report then stated:

"The Crown acknowledged that Ripa Begum was the key witness and her credibility was the key issue at trial. As she could not be located then, notwithstanding the manner in which the recordings were made, the Crown conceded that it was in difficulty resisting Mr Ali's appeal. The Crown conceded that the court would be able to infer that Ripa Begum was avoiding contact. …….The Crown was not in a position to and did not accept that Ripa Begum was the female who was recorded in conversation with Mr Ali as she had provided a statement to the police in March 2008 denying that it was her voice on the recording."

90. The Crown never conceded that the evidence given at trial was untrue. After the decision of the CACD no charges were brought against Mrs Begum. She could not in any event be contacted but there was never a request to investigate whether she had given false evidence and such an investigation was not mounted. On this issue the report went on as follows:

"It was by no means certain that Ripa Begum's original account was not true or indeed that she was the female participant in the recorded conversations. Furthermore, the Court of Appeal made no such recommendation. [to mount an investigation] No action, therefore, was ever taken in respect of the allegations raised by Mr Ali in his appeal."

91. The claimant's claim was first rejected in a letter dated 23 November 2009. At that stage the Secretary of State considered the narrower test formulated in Mullen's case and concluded that "the new evidence does not demonstrate beyond reasonable doubt that your client is clearly innocent".
92. Following the promulgation of the decision in the Adams cases, in May 2011, the Secretary of State reconsidered the claim and again rejected it. The second decision is contained in a letter dated 23 August 2011, the relevant parts of this letter read as follows:

"Your client's case does not fall within the circumstances identified by the Court. There is no indication in the Court's judgment that the new fact demonstrated that there was insufficient evidence upon which the court could convict. There remained questions about the recordings. Professor French was only capable of "supporting a weak conclusion" that the recordings were of conversations with the complainant (paragraph 20). The Court also referred to the "unsatisfactory aspects of the applicant's account" of the circumstances in which the conversations were said to have taken place (paragraph 22). The Court of Appeal merely found that the new evidence was "capable of belief" and "if believed, would significantly undermine the evidence". In addition, there remained other evidence, including the complainant's physical injuries, the blood on the applicant's clothing and the unexplained three loud bangs heard by one of the neighbours.

Therefore it is quite possible that a jury might still have found your client guilty even if presented with the new evidence of the telephone recordings."

93. This claimant had sought permission to apply for judicial review in the light of the first refusal by the Secretary of State. Whilst of course that application was in effect rendered redundant by the subsequent decision of the Secretary of State in August 2011, it is worth noting the terms in which Treacy J refused permission on paper on 20 May 2010. He concluded that this case fell into Category 3 as identified by Dyson LJ in the Court of Appeal in Adams's case ([2009] EWCA Civ 1291 at [19]), and for that reason would not satisfy the test as adumbrated by either Lord Steyn or Lord Bingham in Mullen's case.

(ii) Kevin Dennis

94. On 18 December 2000, this claimant was convicted of the murder of Babatunde Oba on 29 December 1999. Mr Oba was stabbed to death at the Broadway Boulevard Club in Ealing in the early hours of the morning. He was stabbed 10 times in the course of a brawl. The prosecution evidence included expert evidence that two different knives had been used to stab him. This claimant was present with his brother Desmond Dennis, his cousin Carl Dennis and another man named Stefan Williams. All four were tried and convicted, not merely of murder but of violent disorder. The murder conviction was based on the Crown's allegation that all four were part of a joint enterprise to kill or cause grievous bodily harm to Mr Oba.
95. Part of the evidence against this claimant at his first trial came from an expert witness Michael Harrow, who interpreted the CCTV images taken at the time. One of these images showed Stefan Williams with an object in his hand. Although Williams began by denying that he had anything in his hand during the fight, by the conclusion of the trial Williams admitted that he had an object in his hand, although denied that it was or could have been a knife. Michael Harrow's evidence was that the object probably was a knife. This evidence was important to the Crown's case since there was no other evidence that the group of which the claimant formed a part were carrying a knife or knives. There was clear evidence that, just after the fatal stabbing and when the group had been ejected from the club, one of the group called out "get the gun, get the gun" and soon after, the claimant's cousin Carl Dennis came back to the club door and fired a gun in the air and otherwise behaved in a threatening manner.
96. The jury convicted Williams unanimously and the others by a majority.
97. In the course of the first trial, at the close of the prosecution case, a submission of no case to answer on the charge of murder had been made on behalf of Kevin, Carl and Desmond Dennis. The trial judge HHJ Roberts QC identified the fundamental question which this submission raised in the following way:

"The short but difficult question which I have had to consider is whether, on the evidence before the jury, they would be entitled to infer, as against any of the three defendants on whose behalf submissions have been made, that that defendant knew of the existence of a knife in the possession of one of his colleagues and realised that that knife might be used in the course of the attack with the intention of causing death or really serious injury."

98. After some hesitation, the Judge concluded that there was such a case. His principal reason for that conclusion was the evidence of Dr Patel that two knives of different widths were used to inflict the wounds. He considered that it "would be open to the jury to draw the inference which the Crown seek to draw from the basic facts which the Crown had proved; in other words, to draw the inference this was indeed a group of men "tooled up" and ready for action".
99. By a letter dated 11 November 2001, the claimant submitted grounds of appeal against conviction settled by himself. The essence of these grounds was to suggest the evidence was not capable of sustaining the conclusion that he had the necessary foresight for guilt as a secondary party to murder, on the basis of joint enterprise. On 12 February 2002 Andrew Smith J gave leave to appeal on the single ground that it was arguable the trial judge had wrongly rejected the submission of no case to answer. Provisional grounds of appeal adopting that point were settled by leading counsel on 10 October 2002. The provisional grounds of appeal against conviction settled by counsel make no reference to the evidence of Michael Harrow. That point was not then being taken.
100. This claimant's co-defendants Carl Dennis, Desmond Dennis and Stefan Williams also appealed. The appeal first came before the CACD in June 2003. The Crown indicated concern about the evidence of Michael Harrow, but full details were not then available. The appeal next came before the CACD on 26 March 2004. By then, there were a number of decisions in which the CACD had quashed convictions because of the unreliability of the evidence of Mr Harrow. In the claimant's appeal, the Crown immediately conceded that, had they known what was by now known about Mr Harrow, they would not have called him as an expert. They had obtained fresh expert evidence as to the CCTV images and they accepted on the basis of that evidence that the imagery was not good enough to say whether or not Stefan Williams was holding a knife. It was following that concession, that the CACD reviewed the safety of the conviction.
101. The court focused on the evidence which was said to show that this claimant and his companions were operating as a group. The court noted the evidence as to a gun and as to threatening behaviour after the group were ejected from the club. The four appellants had arrived as part of a group of between five and seven people in two cars and appeared to have left at the same time. The court considered some of the evidence at trial, to the effect that one of the doormen had recognised one of the attackers as not being one of the group comprised by these appellants, but coming from another group who had entered the club from a different entrance. This was a group of men with Jamaican accents and who were referred to at trial as the "Rizla" group. The court noted that the Crown had pointed out some of the inconsistencies in that body of evidence and also noted the Crown's submission as to the improbability of two discrete groups having joined in the attack on the deceased. Against that backcloth, the court considered whether the convictions for murder were unsafe.
102. In concluding that the convictions were unsafe, the court laid considerable emphasis on the evidence of Mr Harrow. As we have noted above, his was the only evidence which showed directly that one of those in the appellant's group had a knife. That evidence had to be seen in the context that the appellant Williams had denied in interview that he had anything in his hand, but subsequently accepted that he must have had something, which he suggested might be various objects such as keys, a key ring, a pen or a torch. The image in question was taken very shortly after the stabbing of the deceased. The court observed that the conjunction of the evidence from Mr Harrow, alongside "the improbability of [the object] being that which Williams suggested, must, we think, have weighed in the jury's mind". For that reason, and with specific reference to the conclusions of the trial judge and his observations of concern in rejecting the submission of no case to answer, the CACD concluded the convictions must be set aside.
103. There followed a full argument as to whether or not it was proper to order a retrial. Counsel for the appellants argued that, without the evidence of Mr Harrow, there was no longer a prima facie case against the defendants. The Crown replied suggesting that the representations made on behalf of the appellants "leave out time and time again the dynamics of the group". The Crown relied on the conclusions of the trial judge and the convictions for violent disorder on count 2, the latter being unchallenged and establishing the joint enterprise between the appellants to attack Mr Oba "…..and, there, the only other element the Crown need to prove is the knowledge of the weapons". It was submitted that the evidence from the medical expert, to the effect that there were two knives used by the group attacking the deceased, together with the evidence of the behaviour of the group immediately following the fatal attack, meant there was enough to go to a jury even in the absence of the evidence of Mr Harrow.
104. The CACD ordered a retrial. They did so in the following terms:

"57. We do not consider that it is for us now to decide that there is no case to answer, because we are satisfied that on an analysis of the evidence before us on paper, there is sufficient for us to order a retrial, taking into the account the circumstances, particularly the age of the case, to which we have referred. We have already observed that the Crown must, within a period we shall hear counsel on, set out the evidence upon which it is now able to rely. We have also taken into account that in this case, as is apparent from the ruling of the learned judge, much will depend upon the trial judge's assessment of the quality of the identification evidence.

58. In those circumstances we consider that the just and proper course is to order a retrial, but wish to make it clear that first of all rearraignment must take place within as short a time as possible. We will hear counsel on that in a moment. Secondly that the Crown must provide a new outline of its case, together with the evidence that it is now able to call in support of it in the near future. As Mr Leonard, on behalf of the Crown, has very properly acknowledged, the Crown will keep under careful review, in the light of the evidence that it knows it is able to call, its duties in respect to the prosecution of this case. We would also wish this matter to be heard as soon as possible.

59. In saying what we have said, it will obviously be for those representing the defendants at any appropriate stage, when Crown's case becomes clear, to make any applications they consider right. But on our analysis of the evidence, we consider that, on what we have been told, and what we see, there is sufficient evidence in which it would be just and in the interest of justice that there should be a full retrial on count 1."

105. The claimant's retrial commenced in early 2005 at the Central Criminal Court. Shortly before the close of the prosecution case, when the only evidence outstanding was formal evidence, the second trial judge, HHJ Scott-Gall QC, heard fully argued submissions of no case to answer. He had already made a number of rulings on the admissibility of evidence, which meant that the body of evidence available for the second jury was a little more restricted than that which had been available to the jury at the first trial. Principally, the judge had ruled that the behaviour of the group outside the nightclub, and therefore just after the fatal stabbing, was inadmissible. He thus took a different view, to a limited extent, than the view taken by HHJ Roberts QC at the first trial.
106. In considering the submissions made to him, HHJ Scott-Gall QC made explicit reference both to the ruling in the first trial and to the judgment of the CACD. Early in his conclusions he said this:

"The Court of Appeal never addressed their mind to the secondary point as to whether in fact putting aside the evidence or the non-evidence of the possession of a knife [by] Williams, whether there was a case to answer in respect of the other three. It was left very much to be sorted out in the retrial … and no one disputes it is fair that there was a sufficient case for the court to order a retrial."

107. The Judge went on to observe that the Crown had by then conceded there was no evidence against any defendant as to who held a knife, or a second knife, or as to who struck any blow, let alone the fatal blows. The attack had not been pre-planned and the genesis of 'a plan', "if a plan there was as opposed to loutish behaviour, was formed in seconds in the dance floor incident". The Judge concluded that the quality of identification evidence was such that a jury properly directed could rely on it. There was adequate evidence of a joint enterprise attack on Mr Oba involving Desmond Dennis, Kevin Dennis and Stefan Williams.
108. The Judge noted the evidence of the witness Kilibarda. Kilibarda identified Kevin Dennis as being involved in the fight but not as the stabber. Kilibarda had given a description of the stabber which was not consistent with the appearance of Kevin Dennis. Given the evidence concerning the other group of men – the "Rizla group" - the jury could make no proper conclusion that the stabber was either Kevin Williams, or another member of his group. For those reasons, on 9 March 2005 the judge acceded to the submissions of no case to answer and directed the jury to acquit of murder.
109. On 9 March 2005 following the judge's ruling, this claimant was discharged by the jury. It should be noted that his conviction for violent disorder remains. He made an application for compensation on 6 October 2008, some three and a half years after his conviction was quashed. The claim was rejected in a letter from the defendant dated 7 April 2009. The Secretary of State accepted that, for the purposes of section 133(1) the claimant's conviction was quashed on the grounds of new or newly discovered facts. However, he did not accept that it was quashed on the grounds that those facts showed beyond reasonable doubt there had been a miscarriage of justice. The letter recited the range of authorities extant at that time and concluded that applying the proper approach the claimant was not "clearly innocent". In that context, the Secretary of State relied on the order for a retrial.
110. The claimant's solicitors had raised the fact that the claimant's brother Desmond Dennis had received compensation under section 133. The Secretary of State responded to this by saying he was entitled to approach cases in the light of legal advice taking into account developing jurisprudence. The implication was that the authorities upon which advice was given had become more unfavourable to claims over the relevant years.
111. On 10 June 2011, within a month of judgment in the Adams cases being handed down, the claimant's solicitors wrote asking the Secretary of State to reconsider the claim:

"… since the case of Adams was handed down by the Supreme Court … the situation has changed … in our view the judicial interpretation of section 133 of the Act is now such that Mr Dennis clearly satisfies the requirements."

On 21 October 2011 the Secretary of State replied, refusing to do so.

112. The Secretary of State pointed out that, following the earlier refusal in April 2009, the claimant's solicitors had sent a letter for action but had not brought judicial review proceedings. The time limit for judicial review of that decision was long expired. It was said that the Act did not provide for a second or subsequent application for compensation, and the Secretary of State simply declined to reconsider the case. The claimant's solicitors responded with a pre-action protocol letter on 17 November. This met with a response dated 1 December in which the Secretary of State suggested that the claimant's case did not fulfil the requisite statutory test even as explained in Adams. It was stated that there was no new or newly discovered fact which had arisen after the decision in April 2009. The response repeated the contention that if the claimant considered the original refusal was wrong he should have challenged with judicial review proceedings at the time. Thereafter, the claimant issued proceedings and became part of the group litigation.
113. In the course of the case, the Secretary of State filed a witness statement, dated 13 July 2012, from Sophie Langdale, Deputy Director (Judicial Policy and Criminal Trials) at the Department of Justice. Ms Langdale is the official responsible for running the team advising the Secretary of State on applications for compensation for miscarriages of justice. The witness statement sets out some practical matters relevant to the question of reopening old cases. It is not necessary for us to rehearse that material here since these considerations chime closely with the legal policy we have summarised at [50] above and deal with in more detail when considering the case of Mr Tunbridge at [208] ff. below. However, in her witness statement Ms Langdale assessed whether this claimant could satisfy the relevant test under the approach set out in the Adams cases:

"… if the claimant's application were to be reconsidered."

114. Ms Langdale then analysed this claimant's case. She concluded that it would not fulfil the test in the Adams cases…
115. Ms Langdale concluded that the new fact relating to the unreliability of Mr Harrow's evidence did not undermine the other evidence which remained against the claimant:

"to the extent that no jury could possibly convict the claimant of the offence of murder with which he was originally charged."

116. Her witness statement is clear about one aspect of her approach:

"In reaching this view, I have not applied technical rules of evidence of the type that were applied by the trial judge at the retrial which clearly could have affected his decision in concluding there was an insufficient case to answer."

117. Ms Langdale noted that the CACD ordered a retrial. She noted that Judge Scott-Gall QC concluded that there was no case to answer at the end of the Prosecution case in the retrial:

"but that was not based upon any new or newly discovered evidence not known to the Court of Appeal."

She went on to say:

"I also note that the judge at the retrial concluded that there was evidence on which a jury properly directed could be sure on the evidence, if they so decided, that the claimant was implicated in the attack on Mr Oba and I have already referred to the fact that the claimant's conviction for violent affray remained."

118. In a central passage, Ms Langdale stated:

"I also note that there was evidence that after the group of which the claimant was part were ejected from the club, one member called out "get the gun, get the gun" and Karl Dennis returned to the club with a firearm which was fired in the air. Karl Dennis and Mr Mehta were convicted of possession of a firearm with intent to endanger life in respect of this incident. It seems to me that this evidence taken with the other remaining evidence was potentially capable of resulting in a conviction of the claimant for murder, notwithstanding that the trial judge himself concluded that that evidence should not be led before the jury at the retrial."

…

(iii) Justin Tunbridge

119. On 5 September 1995, after a trial before HHJ Viscount Colville of Culross and a jury at Snaresbrook Crown Court, the claimant was convicted of two counts of indecent assault by a majority of 10:2. On 6 October 1995, he was sentenced to 9 months imprisonment on each count to run concurrently. On 21 December 1995, the claimant was refused leave to appeal his conviction by the single judge. Subsequently, his case was investigated by the Criminal Cases Review Commission and, on 8 February 2007, the case was referred to the CACD by the CCRC. On 17 April 2008, his convictions were quashed by the CACD, see: R –v- Tunbridge [2008] EWCA Crim 949.
120. The allegations behind these convictions can be summarised as follows. The complainant KK was a friend of the claimant's then girlfriend Ms B. The allegation was of a series of indecent assaults by the claimant in Ms B's flat while she was asleep in the bedroom and the complainant and the claimant were together in the living room. The complainant alleged that the claimant had touched her breasts, tried to put his penis in her mouth and masturbated and ejaculated onto her face and top. The defence account was that the claimant never touched KK's breasts, and the jury acquitted him in relation to that allegation, which formed count 1 of the indictment. The claimant's account as to counts 2 and 3 was that KK had made sexual advances to him, that they kissed and that KK masturbated him, so that he ejaculated on her arm. His account to the jury was not merely that this was consensual sexual contact, but that KK had taken the initiative.
121. The circumstances giving rise to the reference to the CACD were helpfully summarised in the judgment: see [2008] EWCA Crim 949 at [7] – [14]. In the early 1990s, the claimant was working in Tenerife. Whilst working there he was friendly with a Miss G, who was in turn a good friend of his cousin. After about two years Miss G returned to the United Kingdom from Tenerife and started to work in a casino. Between about 1996 and 1998 she worked there at the same time as KK and they became friendly. In 1997, KK and Miss G decided to go together to Ascot. KK stayed the night before at Miss G's house. During the course of that evening KK saw a photograph taken in Tenerife in which both Miss G and the claimant were shown. KK asked Miss G what she thought about the claimant. As the CACD summarised it:

"Miss G, according to her evidence, said that she thought he was a "bit flash". The complainant then said that she had brought the Appellant down a peg, he was no longer so flash; she had lied about the matter in court and that had brought an end to, by implication, his cockiness. According to Miss G, the complainant seemed to be almost bragging about it. Miss G's evidence was that that affected her view of the complainant. Thereafter, although they remained, as she described it, friends, they did not see each other so often."

122. Miss G took no active steps about this alleged admission of perjury. She told the CACD when giving evidence to that Court that she did not really know what to do with the information. She did not obtain any advice from anyone or take any action. Then, by chance, she met the claimant in the summer of 2004. They recognised each other, exchanged telephone numbers, and subsequently met for coffee. During the course of that casual conversation they talked of mutual acquaintances. Miss G's evidence was that the claimant seemed to her to have changed significantly and she asked him about that. He told her that going to prison for something he had not done had had a substantial effect on him. This led to Miss G informing the claimant what she knew of the matter. This eventually led to the case being investigated by the CCRC.
123. KK was investigated by the police as part of that referral. The CACD had available the transcripts of her interviews. In interview, KK rejected the suggestion she had lied. She also rejected the suggestion that she had confessed to lying to Miss G. Other matters emerged in the course of the investigation which might have been used to the discredit of KK had the CACD decided to order a retrial of her allegations.
124. In the course of the hearing before the CACD, Miss G gave evidence as to what the complainant KK had said about the whole affair. When considering whether the evidence of Miss G should be admitted under section 23 of the Criminal Appeals Act 1968, the Court said this:

"15. We have unhesitatingly come to the conclusion that Miss G's evidence is capable of belief. It would have been admissible. Had that statement been made to Miss G before the trial, it could have been put before the jury and it would clearly have been capable of having had an effect on the verdict. The question is, ultimately, accordingly, whether these verdicts were safe bearing in mind our views about the evidence of Miss G

16. …

17. We have unhesitatingly come to the conclusion that it was evidence which could well have affected the verdicts that the jury brought in. It seems to us therefore, in relation to both ways in which we have to test fresh evidence such as this, the evidence is such as to lead to the conclusion that these verdicts were unsafe, and, whatever may be the truth of the matter in relation to the events in 1995, we must accordingly quash these convictions." …

125. The claimant made an application for compensation pursuant to section 133 on 29 May 2008. This application was refused, the decision being communicated in a letter dated 17 October 2008. The relevant passages from this letter read as follows:

"Section 133(1) provides that compensation shall be paid where a conviction has been "reversed …on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice …unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted." Section 133(5) of the Act defines 'reversed' in this context as including a conviction having been quashed following a reference to the Court of Appeal by the Criminal Cases Review Commission.

The Justice Secretary has considered your client's application under the provisions of the Act. The conviction was quashed following a reference from the CCRC and has therefore been "reversed" for these purposes.

The Justice Secretary accepts that, for the purposes of section 133(1), your client's conviction was quashed on the ground of new or newly discovered facts. However, he does not accept that it was quashed on the ground that those facts "showed beyond reasonable doubt that there had been a miscarriage of justice". All that can be said is that the jury may or may not have convicted your client had the new evidence been available to them at the original trial. The cases of R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), Re Boyle [2007] NIQB 88, and R v (Allen, formerly Harris) v Secretary of State for Justice [2008] EWHC Civ 808 have been considered in this context."

126. On 15 January 2009, the claimant issued an application for permission to bring judicial review proceedings challenging this decision. He was refused permission on the papers by HHJ Waksman QC on 24 March 2009 and again refused permission by Blair J after an oral hearing on 9 June 2009.
127. Following the promulgation of the decision in the Adams cases the claimant invited the Secretary of State to reconsider his application in a letter of 17 June 2011. In a letter dated 21 October 2011, the Secretary of State declined to reconsider the claimant's case. The material part of the letter read as follows:

"Your client has already made an application for such compensation, which was refused by the Justice Secretary on 17 October 2008. Section 133 of the 1988 Act does not provide for a second or subsequent application for compensation to be made. Therefore your client appears to be requesting that the Justice Secretary reconsider his decision to refuse your client's original application for compensation.

The statutory test for entitlement to compensation was and remains that set out in section 133 of the Criminal Justice Act 1988. Although the Supreme Court in Adams has now definitively decided the correct interpretation of the term "miscarriage of justice" in that section, the alternative possibilities which the Supreme Court was being asked to consider have been the subject of argument in the High Court and the Court of Appeal for some years.

You brought judicial review proceedings, on behalf of your client, in January 2009. Permission was refused by the Court on 24 March 2009. The claim was renewed by your client and at a subsequent hearing on 9 June 2009, the judge refused to grant permission having concluded that the Justice Secretary had made the correct decision in this matter.

Therefore the Justice Secretary has declined to reconsider your client's case."

128. On 15 December 2011, the solicitors acting for the claimant wrote a judicial review Pre-action Protocol Letter suggesting that the wording of the Act, and indeed the wording of the application form provided to applicants for compensation under the Act, implied that:

"it is evident that the questions envisaged repeat applications relating to the same conviction, and that new information might affect the earlier decision. This is strongly indicative of the fact that repeat applications are permitted, envisaged and planned for within the application system. There is nothing prohibiting the Justice Secretary from reconsidering applications if there is a relevant development which may impact on the likelihood of a previously rejected application being eligible for compensation. Parliament has clearly decided, by virtue of the 1988 Act, not to exclude such a possibility. On the contrary, had Parliament wished to exclude the reconsideration of a repeat application from the ambit of the statutory scheme, it would have expressly legislated for this."

129. The Secretary of State replied in a letter dated 22 December 2011. The relevant parts of this reply read as follows:

"7. The Justice Secretary is not aware of any new or newly discovered fact which has arisen subsequent to his decision to reject your client's application in October 2008. Your submission that the Adams judgment itself amounts to a "material change in circumstances" justifying the re-consideration of your client's application is not accepted. The Adams judgment cannot reasonably be said to constitute a new fact justifying either the consideration of a further application or the re-consideration of the original.

8. We note that you do not suggest that the facts upon which the Minister refused compensation to your client in October 2008 would meet the demanding test as set out in Adams, namely that the evidence against him was so undermined that no conviction could possibly be based upon it.

9. As there are no new facts that the Justice Secretary has not considered, there is no rational basis for re-considering your client's application or for considering a fresh application. It is denied that this approach is either irrational or amounts to a "blanket policy", as it is entirely logical and does not necessarily apply to all repeat applications e.g. second applications requiring new facts to be considered which were not subject to the first application. This is reflected in the application form (to which you refer in your letter), which specifically invites the applicant to specify any new information which might affect the earlier decision. Therefore, as there is no blanket policy, it is denied that the Justice Secretary has fettered his discretion.

10. We note that your client brought judicial review proceedings in January 2009 following the Justice Secretary's decision to refuse his application in October 2008. The court refused to grant permission in March 2009 and again at a subsequent hearing in June 2009. The present claim appears to be a misguided attempt to open up those proceedings or circumvent the limitation period following the refusal in October 2009. On your analysis, subject to a convenient change in the law, claimants would forever have the opportunity to bring a claim, potentially decades after the event, notwithstanding the relevant limitation provisions. This would promote a lack of certainty in the legal process and would be manifestly unfair on Defendants. In any event, as submitted above, it is not accepted that the Adams judgment requires the Justice Secretary to re-consider your client's application."

Note 1   References in this judgment to Adams are to the decision of the Supreme Court, unless otherwise indicated.     [Back]

Note 2   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.     [Back]

Note 3   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).     [Back]

Note 4   See in particular, paragraphs 125, 152, 153, 158, 165 and 167 of the judgment of Lord Kerr inAdams. 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.     [Back]

Note 5   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.     [Back]