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

Section 133 of the Criminal Justice Act 1988 provides a limited entitlement to compensation following an out-of-time quashing of a conviction. A legal error, or the later discovery that known facts gave rise to a statutory defence, is not a “new or newly discovered fact”. The distinction is between new evidential material and a different legal ruling on facts known at trial. The Secretary of State must independently determine entitlement under section 133 and cannot treat the criminal appeal court’s assessment of the prospects of a defence as determinative.

The applicant pleaded guilty to possessing a false identity document and was sentenced to six months’ imprisonment. The Court of Appeal, following a reference by the Criminal Cases Review Commission, quashed the conviction because a defence under s.31 of the Immigration and Asylum Act 1999 had not been considered. It accepted that the defence would quite probably have succeeded, but no retrial was sought.

The Secretary of State refused compensation under s.133 of the Criminal Justice Act 1988. The applicant sought judicial review, arguing that the availability of the statutory defence was a newly discovered fact and that the Secretary of State had applied the wrong test.

1. The claim for judicial review was dismissed. The later appreciation that the applicant had an available statutory defence was not a “newly discovered fact” for the purposes of s.133 of the Criminal Justice Act 1988.

2. Section 133 requires a fact, rather than a matter of law or evidence in the abstract. The underlying facts concerning the applicant’s refugee status and journey to the United Kingdom were known to him, his lawyers and, by inference, the Crown Court. What was subsequently discovered was the legal significance of those facts: namely, that they might satisfy s.31 of the Immigration and Asylum Act 1999. That was a legal ruling on known facts, not the discovery of new factual material.

3. The court followed the reasoning in R v Secretary of State for the Home Department ex parte Bateman and Howse and declined to differ from the closely reasoned decision in Fitzpatrick & Shiels. Those authorities distinguished the correction of a conviction because of new evidential material from its correction because of a different view of the law applied to facts known at trial. The approach was also consistent with the relevant reasoning in In re McFarland and with the contextual reading of Adams.

4. The court additionally held that, had the first ground not disposed of the claim, the Secretary of State’s reasoning would have been defective. Under s.133(3), entitlement is for the Secretary of State to determine. The decision letter treated the Court of Appeal’s assessment that the defence would “quite probably” have succeeded as determinative, without showing an independent evaluation under s.133.

5. Remittal would have been the appropriate remedy on that alternative ground. The applicant had not shown that only one rational outcome was possible, since the statutory defence involved several factual assessments.

First-instance judicial review proceedings. The judgment records that the Court of Appeal (Criminal Division) had previously quashed the applicant’s conviction in the related criminal proceedings, as reported in [2013] EWCA Crim 1372 and [2014] 1 WLR 1516. That decision was not under appeal in these proceedings.