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

For compensation under the Criminal Justice Act 1988, section 133(1), a fact is new or newly discovered if it was unknown to the convicted person during the trial process or an in-time appeal. It need not have been undiscoverable, and knowledge of legal representatives is not automatically imputed to the defendant.

The fact must nevertheless show beyond reasonable doubt that there was a miscarriage of justice. A conviction quashed because fresh evidence might have affected the verdict is not enough. Exceptionally serious failures by legal representatives may qualify, but competent counsel’s errors did not meet that threshold here.

The appellant was convicted of murder in 1993. The Court of Appeal Criminal Division quashed the conviction in 2007 after finding that trial representatives had failed to discover and deploy three items of unused material. The conviction was unsafe, but the court did not find that acquittal was inevitable.

The appellant sought compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State refused the application. The Divisional Court dismissed the judicial review claim: 2009 EWHC 156 [Admin]. The appeal concerned whether the material was new or newly discovered and whether it showed beyond reasonable doubt that there had been a miscarriage of justice.

1. Appeal dismissed. The appellant succeeded on the meaning of new or newly discovered fact, but did not satisfy the separate miscarriage of justice requirement.
2. Under section 133(1) of the Criminal Justice Act 1988, the relevant person is the convicted person. A fact is new or newly discovered if it was unknown to that person during the trial process or an in-time appeal. It need not have been unknowable or unavailable for discovery. Material known or discoverable by legal representatives was not thereby known to the appellant. The undeployed evidence therefore satisfied this limb.
3. The statutory threshold remained high. The new fact had to show beyond reasonable doubt that there had been a miscarriage of justice. The court distinguished a category 3 case, where fresh evidence means that a jury might have acquitted but might also have convicted, from a case showing demonstrable innocence or a serious failure in the investigation or conduct of the trial.
4. The court did not resolve the competing narrow and wider interpretations discussed in Mullen. Applying the wider interpretation provisionally, a legal representative’s acts or omissions could qualify only where they were so egregious that, considering the case as a whole, the defendant was deprived of effective representation. Examples could include failure to appear, failure to put the defence, or a plain conflict of interest.
5. There was no breach of article 6(3)(c) of the European Convention on Human Rights. The State is not responsible for every shortcoming by an independent lawyer. The shortcomings must be manifest and sufficiently grave to require State intervention. Experienced counsel had acted conscientiously and in good faith, despite serious preparation errors: (1991) 3 EHRR 36; [2003] EWCA Crim 1060.
6. Nor had the common-law right to a fair trial been breached. The errors were not so gross as to undermine the integrity of the trial. The Criminal Appeal Division had quashed the conviction because the unused material might have affected the verdict, not because the trial itself was unfair. Accordingly, there was no miscarriage of justice even on the wider interpretation.

Lord Justice Lloyd and Lord Justice Waller agreed with Lord Justice Dyson.

1. Court of Appeal (Civil Division): appeal dismissed. The court held that the evidence was new or newly discovered to the appellant, but that it did not establish a miscarriage of justice under section 133.
2. Divisional Court: judicial review application dismissed on 4 February 2009. The court upheld the Secretary of State’s refusal of compensation: 2009 EWHC 156 [Admin].
3. Court of Appeal Criminal Division: the appellant’s conviction was quashed in 2007 as unsafe because unused evidence had not been deployed.