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

Compensation under section 133 of the Criminal Justice Act 1988 is available where a new or newly discovered fact so undermines the evidence against a convicted person that no conviction could possibly be based upon it. Proof of factual innocence is sufficient but is not essential. It is insufficient that the conviction became unsafe, that a jury might have acquitted, or that a procedural failure occurred without undermining the evidential basis of guilt.

The Secretary of State must decide the statutory question independently, while respecting the appellate court’s reasoning. A fact may be newly discovered although previously available to the defence, particularly where its significance was not appreciated. Refusal of statutory compensation on these principles does not undermine the presumption of innocence.

Three men whose murder convictions had been quashed following references by the Criminal Cases Review Commission sought compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State refused each application, and the refusals were upheld on judicial review.

In the English appeal, the Court of Appeal dismissed Mr Adams’s claim: [2009] EWCA Civ 1291. His conviction had been quashed because material overlooked by his defence might have affected the jury’s verdict. In the Northern Irish appeals, the Court of Appeal upheld the rejection of Mr MacDermott’s and Mr McCartney’s claims: [2010] NICA 3. Their convictions had depended entirely on admissions whose reliability and admissibility were gravely undermined by subsequently discovered material concerning police ill-treatment.

The common issue was the meaning of “miscarriage of justice” in section 133. The Adams appeal also raised the meaning of “a new or newly discovered fact”.

1. Disposition. By a majority of five to four, the appeals of Mr MacDermott and Mr McCartney were allowed and they were held entitled to compensation. Mr Adams’s appeal was dismissed unanimously.

2. Meaning of miscarriage of justice. Lord Phillips formulated the test adopted by Lord Hope, Lady Hale, Lord Kerr and Lord Clarke. A new fact establishes a miscarriage of justice when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. Proof of factual innocence satisfies the test but is not indispensable. The formulation confines compensation to cases in which the evidential foundation of the conviction has been conclusively destroyed. It excludes cases where the new material merely renders the conviction unsafe, so that a reasonable jury might convict or acquit. It also excludes procedural or investigative impropriety which does not undermine the evidential basis of guilt.

3. Decision-maker. The Secretary of State must determine whether the statutory conditions are met. The appellate judgment is highly material, but the Secretary of State must reach an independent conclusion from all relevant information and must not contradict the appellate court’s reasoning without good reason.

4. Application. The material in Mr Adams’s case could have affected the jury’s assessment but did not so undermine the prosecution evidence that conviction became impossible. The cases of Mr MacDermott and Mr McCartney depended entirely on admissions. The newly discovered facts concerning assaults by members of the interviewing team and the prosecution’s prior acceptance that another detainee had been assaulted destroyed the basis on which those admissions could have been admitted. No conviction could possibly have rested on the remaining material.

5. Newly discovered facts. Lord Phillips, Lady Hale, Lord Kerr and Lord Clarke treated Mr Adams’s overlooked material as newly discovered notwithstanding its pre-trial availability to his lawyers. Lord Hope dissented on this issue. The Court nevertheless agreed that a fact does not qualify merely because the defendant later ceases personally to be ignorant of it.

6. Presumption of innocence. Refusing compensation because the special statutory requirements are unmet does not impugn the acquittal or violate article 6(2). A retrial ending in acquittal is likewise insufficient by itself.

Lord Judge, Lord Brown, Lord Rodger and Lord Walker dissented on the Northern Irish appeals. They would have confined compensation to cases where the claimant established factual innocence beyond reasonable doubt and would have remitted those claims to the Secretary of State.

1. United Kingdom Supreme Court: Mr Adams’s appeal was dismissed. The appeals of Mr MacDermott and Mr McCartney were allowed, and they were declared entitled to compensation: [2011] UKSC 18.

2. Court of Appeal of England and Wales: The court upheld the refusal of compensation to Mr Adams, although it held that the material overlooked by his legal representatives was capable of being newly discovered: [2009] EWCA Civ 1291; [2010] QB 460.

3. High Court, Divisional Court: The court upheld the refusal of Mr Adams’s claim, holding that the conviction had not been quashed because of a new or newly discovered fact: [2009] EWHC 156 (Admin).

4. Court of Appeal in Northern Ireland: The court dismissed the appeals of Mr MacDermott and Mr McCartney from Weatherup J’s refusal of judicial review: [2010] NICA 3.

5. High Court in Northern Ireland: Weatherup J dismissed the applications for judicial review of the refusal of compensation on 25 June 2009.