Ali & Ors, R (On the Application Of) v Secretary of State for Justice

For compensation under section 133 of the Criminal Justice Act 1988, a category 2 miscarriage of justice arises only where a new fact so undermines the evidence that no conviction could possibly be based upon it. This is not the same test as whether a properly directed jury could reasonably convict, whether there is a case to answer, or whether a conviction is unsafe.

The Secretary of State determines entitlement by applying that test and may reach an independent view consistent with the criminal appeal judgment. Judicial review is on ordinary public law grounds. A lawful policy may limit reconsideration of concluded compensation decisions after a change or clarification in the law, having regard to legal certainty and good administration.

Three applicants had served imprisonment after criminal convictions which were later quashed. Ali and Tunbridge were not retried. Dennis was retried for murder and acquitted after a submission of no case to answer, although his conviction for violent disorder remained.

Each sought compensation under section 133 of the Criminal Justice Act 1988. Dennis and Tunbridge also asked the Secretary of State to revisit earlier refusals after the Supreme Court decision in Adams. The Divisional Court dismissed their judicial review claims in [2013] EWHC 72 (Admin).

The appeals concerned the correct category 2 test under section 133, the lawfulness of refusing reconsideration or a repeat application, and whether the Secretary of State's merits assessments were irrational.

1. Appeals dismissed. The Divisional Court was wrong to substitute its own category 2 formulation for the test in R (Adams) v Secretary of State for Justice, [2011] UKSC 18. A new or newly discovered fact establishes a category 2 miscarriage only where it so undermines the evidence that no conviction could possibly be based upon it. The rejected formulation, based on whether a properly directed reasonable jury could convict, improperly assimilated the statutory inquiry to a no-case submission.

2. The Secretary of State must apply section 133 to the particular facts, including relevant facts arising after the conviction was quashed. He may form an independent view, provided it does not conflict with the Criminal Appeal Court's judgment. His decision is reviewable only on conventional public law grounds. Save exceptionally, the reviewing court should not undertake a detailed factual reassessment merely because it might have reached a different conclusion.

3. The refusal to reopen Dennis's and Tunbridge's concluded claims was lawful. A public authority may adopt a lawful, time-limited reconsideration policy after a change or clarification in the law. Legal certainty, prompt administration of compensation claims and the avoidance of stale claims justified the policy. The treatment of Ali was not unfairly inconsistent because his pending challenge had been deferred by agreement while Adams was decided.

4. A decision in Adams was not a new or newly discovered fact permitting a fresh application. The repeat-application policy allowed reconsideration where relevant new facts had not previously been available or presented, but no such fact was identified for Dennis or Tunbridge. Permission given at the substantive group hearing to argue all issues did not itself extend time for challenging the original decisions.

5. The Secretary of State's assessments of Ali's and Tunbridge's claims were rational. Evidence capable of belief and sufficient to render a conviction unsafe did not necessarily make a conviction impossible. Material credibility and authenticity disputes, together with the remaining evidence, meant that their cases could fall within category 3 rather than category 2.

6. Obiter, the court considered that the reference to no conviction in the category 2 test excludes compensation where the remaining evidence could support another conviction arising from the same incident. Entitlement should not depend on whether a retrial happened to be ordered.

• Court of Appeal (Civil Division) — Dismissed the appeals from the Divisional Court: [2014] EWCA Civ 194.
• Divisional Court, High Court — Dismissed the applicants' judicial review claims concerning compensation under section 133 of the Criminal Justice Act 1988: [2013] EWHC 72 (Admin).