Ali & Ors, R (on the application of) v Secretary of State for Justice

Under section 133 of the Criminal Justice Act 1988, a compensatable miscarriage of justice is not confined to demonstrated innocence. Category 2 is established where, on the evidence as now known, the claimant proves beyond reasonable doubt that no reasonable jury or magistrates properly directed could convict.

The Secretary of State must generally accept the conclusions and evidential implications of the Court of Appeal Criminal Division and of a retrial judge, subject only to later evidence or exceptional circumstances. He must respect evidential rulings and give reasons for departing from them. His decision is subject to ordinary judicial review, not an appellate merits determination. Of the five claims, only Lawless succeeded.

Five claimants sought judicial review of refusals of compensation under section 133 of the Criminal Justice Act 1988, following the Supreme Court’s decision in R (Adams) v Secretary of State for Justice; Re MacDermott and Re McCartney [2011] UKSC 18.

The cases concerned convictions quashed by the Court of Appeal Criminal Division on grounds involving fresh evidence. Some claimants had been retried and acquitted, or discharged on a submission of no case to answer. The central issues were the meaning of the category 2 test, the effect of retrials and appellate decisions, the treatment of evidential rulings, the Secretary of State’s duty to reconsider earlier refusals, and the court’s role on judicial review.

1. Applicable test. The court held that the majority reasoning in Adams [2011] UKSC 18 was materially consistent. Category 2 is established where the claimant proves beyond reasonable doubt that no reasonable jury or magistrates, properly directed as to the law, could convict on the evidence now available.
2. Appellate decisions and evidence. The Secretary of State must normally accept the decision of the Court of Appeal Criminal Division and its implications. The court’s focus on whether a conviction was unsafe does not prevent section 133 compensation. Departure is permissible only where the evidence has subsequently evolved or exceptional circumstances exist.
3. Evidential rulings. The Secretary of State must not disregard evidential rules as merely technical. He should depart from a judge’s ruling only in rare circumstances and on a fully reasoned basis. A bare assertion that another judge might have ruled differently is insufficient.
4. Retrials. The same statutory test applies after a retrial. A retrial at which the case was properly left to the jury will ordinarily make a category 2 claim impossible, although the particular facts remain decisive and later fresh evidence cannot be excluded in principle.
5. Reconsideration. An earlier unchallenged refusal is presumed valid. In the interests of finality, reconsideration following Adams was generally required only where the earlier decision was made within three months of that decision.
6. Judicial review. Section 133 assigns the primary evaluative decision to the Secretary of State. The High Court supervises that decision under ordinary judicial review principles, with intensity varying according to the nature and gravity of the issue. It does not generally substitute its own merits assessment.
7. Individual outcomes. Ali’s claim failed because the recordings and identification evidence left open a proper conviction. Dennis’s claim failed principally because reconsideration was not required and because the Secretary of State’s later analysis was not sufficient to overcome the evidential problem. George’s retrial had properly been left to the jury. Lawless succeeded because the agreed psychological evidence rendered the confession evidence unreliable and no case remained. Tunbridge’s claim failed for reasons of finality and because a reasonable jury could accept the complainant’s account.
8. The Secretary of State’s decision in Lawless was quashed and his entitlement was remitted for reconsideration. The challenges by Ali, Dennis, George and Tunbridge were refused.

First-instance judicial review proceedings. The judgment considered earlier decisions of the Court of Appeal Criminal Division and the Supreme Court decision in R (Adams) v Secretary of State for Justice; Re MacDermott and Re McCartney [2011] UKSC 18.