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

For compensation under Criminal Justice Act 1988, newly discovered facts must show beyond reasonable doubt that a miscarriage of justice occurred. Facts affecting a witness’s credibility may qualify as “new or newly discovered facts”, but that does not itself establish a miscarriage of justice.

Applying the approach discussed in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, the claimant must show either that he was innocent or that something went seriously wrong in the investigation or conduct of the trial, resulting in a wrongful conviction. Post-trial conduct which merely creates doubt about a witness’s credibility, with no failure in the trial process, is insufficient.

The claimant sought judicial review of the Home Secretary’s refusal to award compensation under section 133 of the Criminal Justice Act 1988. He had been convicted of raping his wife, but the Court of Appeal later quashed the convictions after fresh evidence showed that the complainant had told lies on several occasions.

The Home Secretary concluded that the statutory requirements were not met. The claimant argued that the fresh evidence constituted new facts and demonstrated a miscarriage of justice. The central issues were whether the evidence was “new or newly discovered facts” and whether it showed beyond reasonable doubt that there had been a “miscarriage of justice”.

1. The application for judicial review was dismissed. The claimant’s convictions had been quashed, but the newly discovered facts did not satisfy section 133 of the Criminal Justice Act 1988.
2. Facts affecting the credibility of a witness can constitute “new or newly discovered facts”. The Court of Appeal had made findings that the complainant had lied on several occasions. It was unnecessary to construe “facts” narrowly so as to exclude evidence of that kind.
3. The Court considered the competing interpretations of “miscarriage of justice” discussed in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18. It proceeded on Lord Bingham’s approach without deciding whether Lord Steyn’s narrower interpretation was preferable.
4. On Lord Bingham’s approach, the expression covers at least two situations. The first is where new facts demonstrate that the claimant was innocent. The second is where acts or omissions in the investigation or trial seriously infringed the right to a fair trial, so that the claimant was wrongly convicted. The second category requires a serious failure in the trial process.
5. The claimant could not establish innocence. Nor had anything gone seriously wrong in the investigation or conduct of the trial. The complainant’s later conduct merely raised doubts about her credibility. Whether the jury would have reached a different verdict if it had known of that conduct was speculative.
6. Section 133 is not satisfied whenever a conviction is quashed because of newly discovered facts. The wider discretionary compensation scheme formerly operated by the Secretary of State was distinct from the statutory entitlement relied upon in this claim.

The judgment itself was a first-instance judicial review decision. It records that the claimant’s criminal convictions had previously been quashed by the Court of Appeal on 19 July 2005.