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

Compensation under section 133 of the Criminal Justice Act 1988 is confined to clear cases in which new or newly discovered facts establish beyond reasonable doubt that there has been a miscarriage of justice, ordinarily by demonstrating clear innocence. A conviction being quashed because fresh material creates doubt about safety is insufficient. The wider formulation concerning defendants who should not have been convicted does not extend to every case involving subsequently exposed weaknesses in evidence. A failure to obtain material, without more, does not necessarily amount to a serious failure in the investigation or trial. Different treatment of earlier applications may be justified where subsequent case law has changed the decision-maker’s lawful approach, and cases must be compared by their substantive impact rather than by shared witnesses or evidence.

The claimant’s convictions for indecent assaults and indecency were quashed by the Court of Appeal (Criminal Division) after the Criminal Cases Review Commission identified material affecting the credibility of a complainant. The Court of Appeal concluded that the cumulative effect of the material meant that it could not be certain that the jury would have convicted, applying R v Pendleton [2002] 1 WLR 72. The Justice Secretary nevertheless rejected the claimant’s application for compensation under section 133 of the Criminal Justice Act 1988. The claimant challenged that decision, relying on the wider approach discussed by Lord Bingham in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, and alleged unlawful unequal treatment because another defendant, Mr Brooke, had received compensation.

1. Claim dismissed. The Justice Secretary was entitled to reject the application for compensation under section 133 of the Criminal Justice Act 1988.
2. The court adopted the narrow approach stated by Lord Steyn in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 and by the Court of Appeal in R (Allen, formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808. The statutory expression is directed to clear cases in which new or newly discovered facts establish that the convicted person was clearly innocent. It does not cover every conviction quashed because fresh evidence makes the conviction unsafe.
3. The wider formulation discussed by Lord Bingham requires something seriously wrong in the investigation or conduct of the trial. The fact that material existed but was not identified does not, without more, establish concealment, withholding, or a comparable serious failure. The claimant’s case did not satisfy that standard, and the fact that some material pre-dated the trial did not distinguish it from R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin).
4. The claimant’s convictions concerning PW were not directly undermined by new evidence. The difficulty arose from the possible effect of the similar-fact direction and the evidence concerning RW. That did not establish beyond reasonable doubt that there had been a miscarriage of justice in respect of those convictions. The court also rejected as unhelpful the proposed inquiry whether the case would have been withdrawn from the jury.
5. Different treatment from Mr Brooke was lawful. The Justice Secretary could take account of developing jurisprudence after Mr Brooke’s application had been accepted. The cases were not truly parallel because the evidential and procedural impact on the respective convictions differed. The court relied on the reasoning in O’Brien v Independent Assessor [2007] UKHL 10, [2007] 2 AC 312, that consistency may yield to a result proper and fair in the particular case.
6. The dismissal did not qualify the Court of Appeal’s decision to quash the convictions. The claimant remained presumed innocent of the charges.

• Court of Appeal (Criminal Division): The claimant’s convictions were quashed following a reference by the Criminal Cases Review Commission: [2006] EWCA Crim 1353.
• High Court (Administrative Court): The challenge to the Justice Secretary’s refusal of compensation was dismissed.