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

For compensation under Criminal Justice Act 1988, section 133, new or newly discovered medical opinion may qualify as a new fact where fact and opinion cannot sensibly be separated. The statutory test nevertheless requires the new or newly discovered fact to show beyond reasonable doubt that there has been a miscarriage of justice. It is insufficient that the new evidence might have caused a properly directed jury to reach a different verdict. The claim therefore fails where the evidence leaves the issue of guilt for the jury and does not demonstrate that the claimant was innocent or was wrongly convicted in the statutory sense.

The claimant had been convicted of manslaughter following the death of her young son. The Court of Appeal, on a reference involving fresh medical evidence concerning shaken baby syndrome, quashed the conviction because the evidence might reasonably have affected the jury’s decision, but it did not order a retrial.

The claimant subsequently sought compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State refused the claim, treating the medical material as new evidence rather than a new fact and concluding that the statutory conditions were not met. The issues were whether changed medical opinion could constitute a new fact and whether the Court of Appeal’s decision demonstrated a miscarriage of justice beyond reasonable doubt.

1. The claim for compensation was dismissed. The Court of Appeal had decided only that the fresh evidence might reasonably have affected the jury’s decision to convict. It had not decided that the claimant was innocent, that the conviction was necessarily wrongful, or that a jury ought to have acquitted her.

2. The Secretary of State adopted an excessively narrow approach in treating the claim as incapable of satisfying section 133 merely because it relied on changed medical opinion. In cases depending on expert medical conclusions about minute physical signs, fact and opinion may be inseparable. New expert opinion, together with new clinical findings, can therefore constitute a new or newly discovered fact for the purposes of the section.

3. The statutory conditions include reversal of the conviction on a qualifying reference or appeal, a new or newly discovered fact showing beyond reasonable doubt that there has been a miscarriage of justice, the existence of such a miscarriage, and punishment suffered as a result of the conviction. The claimant satisfied the reference and punishment conditions, but the remaining conditions were not established.

4. The court distinguished between a miscarriage of process and an evidential miscarriage of justice. The claimant accepted, consistently with R (on the application of Clibery) v Secretary of State for the Home Department, that evidence which merely created a possibility that a jury might have acquitted did not satisfy the statutory standard. The Court of Appeal’s strong reservations about the medical evidence left the issue for a jury and therefore fell well short of proof beyond reasonable doubt.

5. The court left open whether a case in which later-discredited evidence would have required a judge to direct an acquittal could satisfy section 133, but held that this claimant could not succeed because the evidence against her remained powerful. The claim was dismissed, permission to appeal was refused, and an order for costs was made.

The judgment states that the claimant’s conviction was quashed by the Court of Appeal on a reference after fresh medical evidence was heard. The Court of Appeal did not order a retrial. The Secretary of State then refused compensation under section 133 of the Criminal Justice Act 1988. The Administrative Court dismissed the judicial review claim and refused permission to appeal.