R (Mullen) v Secretary of State for the Home Department

Section 133(1) of the Criminal Justice Act 1988 is not confined to cases in which factual innocence is proved. A conviction quashed on an out-of-time appeal because a newly discovered fact established a serious abuse of process may constitute a miscarriage of justice, provided the statutory conditions are met. The words beyond reasonable doubt prescribe the standard of proof; they do not define miscarriage of justice as wrongful conviction of an innocent person. Parliament may provide compensation more generously than an international minimum. After quashing, the presumption of innocence also militates against treating the claimant as guilty unless Parliament has clearly required proof of innocence.

Mr Mullen was convicted in 1990 of conspiracy to cause explosions and sentenced to 30 years' imprisonment. He had been arrested in Zimbabwe and brought to England in circumstances later found unlawful. In 1999 the Court of Appeal (Criminal Division) allowed his out-of-time appeal and quashed the conviction because the prosecution was an abuse of process: [1999] 2 Cr App R 143.

His application for compensation under section 133 of the Criminal Justice Act 1988, and alternatively under an ex gratia scheme, was refused by the Secretary of State. The Divisional Court dismissed his challenge, holding that section 133 applied only where the claimant was ultimately proved innocent: [2002] EWHC 230 (Admin); [2002] 1 WLR 1857. The central issue was whether miscarriage of justice included a conviction quashed for abuse of process without a finding of factual innocence.

Lord Justice Schiemann delivered the leading judgment. Lord Justice Rix and Mr Justice Pumfrey agreed.

1. Appeal allowed. Mr Mullen was entitled to compensation under section 133 of the Criminal Justice Act 1988. It was unnecessary to determine the alternative challenge to the discretionary ex gratia decision.
2. Meaning of miscarriage of justice. Section 133(1) uses the phrase in its ordinary and sufficiently broad sense. It can include a conviction quashed because a newly discovered fact established an abuse of process so serious that the trial should never have taken place. The words beyond reasonable doubt identify the evidential standard. They do not require proof that the claimant was factually innocent. The Divisional Court's narrow construction was therefore rejected.
3. International materials. The travaux préparatoires of the International Covenant on Civil and Political Rights indicated that miscarriage of justice was intended to have a wider meaning than cases in which innocence was proved. The explanatory report to the Seventh Protocol to the European Convention on Human Rights was less helpful, particularly since the United Kingdom had not ratified that Protocol. In any event, implementing an international minimum did not prevent Parliament from granting broader domestic rights.
4. Presumption of innocence. The presumption under Article 14(2) of the Covenant and Article 6(2) of the European Convention on Human Rights operates outside the criminal trial. Once a conviction has been quashed, statutory language should not be interpreted on the basis that the claimant remains guilty or must prove innocence, absent clear words requiring that result. Leutscher v The Netherlands [1996] 24 E.H.R.R. 181 and Lamanna v Austria Application no. 28923/95 supported that approach.
5. Unsafe convictions. The criminal appellate question is whether a conviction is safe, not whether the accused is guilty. Under section 2(1) of the Criminal Appeal Act 1968, a conviction resulting from a trial that should never have occurred because of abuse of process may be quashed without a finding that the verdict was factually wrong. This reasoning was supported by R v Pendleton [2001] UKHL 66 and R v Lyons and Others [2002] UKHL 44.

The respondent was ordered to pay the appellant's costs, subject to detailed assessment. Permission to appeal to the House of Lords was granted.

• Court of Appeal (Civil Division) allowed the appeal from the Divisional Court and held that compensation was payable under section 133 of the Criminal Justice Act 1988: [2002] EWCA Civ 1882.
• Divisional Court of the Queen's Bench Division (Administrative Court) dismissed the judicial review challenge to the Secretary of State's refusal of compensation and construed section 133 as limited to persons proved innocent: [2002] EWHC 230 (Admin); [2002] 1 WLR 1857.
• Court of Appeal (Criminal Division) allowed Mr Mullen's out-of-time appeal and quashed his conviction on abuse-of-process grounds: [1999] 2 Cr App R 143.