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

Compensation under section 133 of the Criminal Justice Act 1988 does not follow merely because fresh evidence caused a conviction to be quashed as unsafe. A miscarriage of justice requires the new fact to establish innocence beyond reasonable doubt.

Even on the broader suggested construction, compensation requires something to have gone seriously wrong in the investigation or conduct of the trial. Conscientious expert evidence does not become flawed merely because later research strengthens a competing opinion. Nor does the presumption of innocence under article 6(2) require compensation following every reversal of a conviction.

The appellant’s conviction for the manslaughter of her infant son was quashed after the Criminal Cases Review Commission referred her case to the Court of Appeal (Criminal Division). Fresh expert evidence strengthened doubts about whether the medical findings established non-accidental injury, but the criminal court did not resolve the competing expert opinions or find that there had been no case to answer.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988. Mitting J rejected the Secretary of State’s stated reasons but dismissed the judicial review claim because compensation could not in any event be obtained: [2007] EWHC 3218 (Admin).

The appeal concerned the meaning of “miscarriage of justice”, whether the fresh medical evidence demonstrated a serious failure of the trial process, and whether article 6(2) of the Convention required the appellant to be treated as innocent for compensation purposes.

1. Appeal dismissed. The quashing of a conviction on fresh evidence does not itself establish a right to compensation under section 133 of the Criminal Justice Act 1988. The provision is confined to cases in which a new or newly discovered fact demonstrates beyond reasonable doubt that a miscarriage of justice occurred.

2. Even if the broader interpretation contemplated by Lord Bingham in Mullen were adopted, the appellant’s case did not qualify. That interpretation required something to have gone seriously wrong in the investigation or conduct of the trial, resulting in the conviction of a person who clearly should not have been convicted. The expert evidence at trial was conscientiously given and reflected sound expertise at that time. Later medical research and a strengthened competing opinion did not retrospectively make the trial process defective.

3. The criminal appeal decision did not establish that there was no case for a jury to determine. The fresh evidence created a genuine disagreement between reputable experts. The criminal court expressly treated that disagreement as suitable for resolution by a jury and merely concluded that the new evidence might reasonably have affected the original jury’s verdict. Its use of the Pendleton question as a check was inconsistent with any finding that the case should never have been left to the jury.

4. The presumption of innocence in article 6(2) did not require compensation. The Austrian and Norwegian authorities concerned compensation arrangements closely linked to acquittals on the merits. Section 133 instead implements a distinct scheme which requires both reversal of the conviction and conclusive proof of a miscarriage of justice. Treating article 6(2) as sufficient would remove the additional conditions deliberately imposed by that scheme.

5. Although unnecessary to the result already reached, Hughes LJ concluded that the correct construction was Lord Steyn’s construction in Mullen: a miscarriage of justice under section 133 requires innocence to be established beyond reasonable doubt. May LJ and Sir Mark Potter P agreed with Hughes LJ’s reasons.

1. Court of Appeal (Civil Division): The appellant’s appeal was dismissed: [2008] EWCA Civ 808.
2. Administrative Court: Mitting J rejected the Secretary of State’s particular reasons but refused to quash the compensation decision because the claim could not in any event succeed: [2007] EWHC 3218 (Admin).
3. Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the appellant’s manslaughter conviction was quashed as unsafe because fresh expert evidence might reasonably have affected the jury’s decision: [2005] EWCA Crim 1980.