Andukwa, R (On the Application of) v Secretary of State for Justice

For the purposes of section 133 of the Criminal Justice Act 1988, a legal defence overlooked at trial is not a “new or newly discovered fact” where the underlying facts were known during the criminal proceedings. The later appreciation of the legal significance of known facts, including an error by legal advisers in failing to identify a statutory defence, is a legal ruling on existing facts. Section 133 therefore does not provide compensation for every conviction subsequently quashed. A decision under section 133(3) is for the Secretary of State, who must exercise an independent judgment and must not treat the Criminal Division’s assessment of the prospects of a defence as determinative.

The applicant had pleaded guilty to possessing a false identity document. The Court of Appeal, following a reference by the Criminal Cases Review Commission, quashed the conviction after accepting that a defence under section 31 of the Immigration and Asylum Act 1999 would quite probably have succeeded.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988. A later decision accepted that the applicant’s immigration status might constitute a new fact but concluded that the Court of Appeal had not found, beyond reasonable doubt, that no conviction could stand. The judicial review concerned whether the overlooked defence was a newly discovered fact and whether the Secretary of State had lawfully assessed the compensation claim.

1. Claim dismissed. The subsequent appreciation that the applicant had an available statutory defence under section 31 of the Immigration and Asylum Act 1999 was not a “newly discovered fact” within section 133 of the Criminal Justice Act 1988. The relevant facts concerning his refugee status and journey to the United Kingdom were known to the applicant, his lawyers and, inferentially, the Crown Court.

2. The Court of Appeal had quashed the conviction because the defence was available on those known facts. That was a matter of law, rather than the discovery of new factual material. The court followed the approach in R v Secretary of State for the Home Department ex parte Bateman and Howse and considered it consistent with In re McFarland, R (Murphy) v Secretary of State for the Home Department and the relevant reasoning in Adams.

3. The court rejected the submission that the failure of legal advisers to identify the defence was itself a newly discovered fact. That would elevate form over substance and would extend section 133 beyond the limited statutory scheme.

4. Section 133(3) makes the compensation decision one for the Secretary of State. Had the first ground not disposed of the claim, the decision letter would have been quashed because it treated the Criminal Division’s assessment that the defence would quite probably have succeeded as determinative. The matter would have been remitted for an independent determination. The supplemental witness statement could not properly repair the original reasoning.

First-instance judicial review. The judgment records that the Court of Appeal (Criminal Division) had previously quashed the applicant’s conviction following a reference by the Criminal Cases Review Commission, but that decision formed part of the same litigation and is not an appellate stage of this claim.