Murphy, R (on the application of) v Secretary of State for the Home Department

For statutory compensation under Criminal Justice Act 1988, a fact may be new or newly discovered even if it relates to an issue raised at trial. However, the fact must have emerged after the ordinary appellate process was exhausted. A fact known before the first ordinary appeal cannot qualify merely because it later contributes to the quashing of the conviction.

The conviction must also have been quashed principally, if not solely, on the ground that the new fact showed a miscarriage of justice. A contribution to a decision based on the totality of the evidence is insufficient. Responsibility for non-disclosure concerns the non-disclosure of the qualifying fact, not general responsibility for the conviction. The claims were dismissed.

Murphy and the personal representatives of Brannan challenged the Secretary of State’s refusal of statutory compensation under section 133 of the Criminal Justice Act 1988. Their murder convictions had been quashed by the Court of Appeal on a second appeal in 2002 after fresh evidence and previously undisclosed police material concerning the victim’s possession of a gun were considered.

The Secretary of State concluded that the material was not a new or newly discovered fact, that the convictions had not been quashed on the statutory ground, and that non-disclosure was attributable to the applicants. The court considered whether those conditions were satisfied, leaving open the wider meaning of miscarriage of justice.

1. Claims dismissed. The court held that failure to satisfy any one of the cumulative conditions in section 133 of the Criminal Justice Act 1988 was fatal.
2. A distinction exists between evidence and fact. Evidence that a matter is true does not itself establish the fact. However, where new evidence results in a finding of fact, that fact may be new or newly discovered even though it concerns an issue raised at trial. The Secretary of State’s contrary reasoning was erroneous.
3. The relevant fact relied on was that, before interviewing the applicants, the prosecution possessed undisclosed material showing that police had received information that the victim had a gun. That fact was available to the defence before the first appeal in 1993. Reading section 133 in the light of article 14(6) of the ICCPR, the statutory scheme concerns facts emerging after the ordinary appellate process has been exhausted. The material therefore could not qualify.
4. The words “on the ground that” require the qualifying fact to be the principal, if not the sole, reason for quashing the conviction. A merely contributory factor is insufficient. The Court of Appeal’s 2002 decision rested on the totality of the evidence, including fresh evidence, the earlier appeal evidence and the undisclosed material. No category of material was treated as determinative.
5. The “wholly or partly attributable” condition concerns responsibility for non-disclosure of the new fact, rather than responsibility for the conviction. On that issue the applicants succeeded: the non-disclosure was attributable entirely to the prosecution. That conclusion could not overcome their failure on the first two issues.
6. The court left open whether the evidence showed beyond reasonable doubt that there had been a miscarriage of justice, and also left unresolved the competing approaches discussed in R (Mullen) v Secretary of State for the Home Department.

The judgment states that the applicants’ convictions were quashed by the Court of Appeal (Criminal Division) on a second appeal following a reference by the Criminal Cases Review Commission in January 2002. The present claims for statutory compensation were then brought in the Administrative Court. Both claims were dismissed.