Clark & Anor, R (On the Application Of) v The Secretary of State for Justice

Compensation for a miscarriage of justice is not payable merely because a conviction was quashed as unsafe, a retrial was abandoned, or a prosecution no longer had a realistic prospect of conviction. Under section 133 of the Criminal Justice Act 1988, the Secretary of State must apply the Category 2 test: the new or newly discovered fact must so undermine the evidence that no conviction could possibly be based on it. That test differs from the test for quashing a conviction, a submission of no case, or a stay for abuse of process. The Secretary of State may form his own view of the statutory question, having regard to the criminal court’s judgment and to relevant later events. His decision is subject to ordinary judicial review principles.

The claimants’ convictions for conspiracy to supply drugs and perverting the course of justice were quashed on a reference to the Court of Appeal, Criminal Division, following serious prosecution disclosure failures. The Court of Appeal ordered a retrial on four counts, stating that significant evidence remained, including evidence from witnesses other than the principal informants. The prosecution later offered no evidence after one principal witness became hostile.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988. The claimants sought judicial review, arguing that the abandonment of the retrial established a miscarriage of justice, or that the case should have been stopped as an abuse of process. The central issue was whether those events satisfied the statutory test for compensation.

1. Claims dismissed. The Secretary of State applied the correct legal principles and committed no public law error.
2. The applicable Category 2 test under section 133 was that a new or newly discovered fact must so undermine the evidence that no conviction could possibly be based on it. That test, identified in R (Adams) v Secretary of State for Justice [2011] UKSC 18, differed from the test applied by the Court of Appeal when quashing a conviction as unsafe, from a submission of no case to answer, and from an application to stay proceedings as an abuse of process.
3. The Secretary of State was required to make his own determination under the statute. He had to have regard to the Court of Appeal’s judgment, but could consider relevant facts arising after the conviction was quashed, provided his conclusion did not conflict with that judgment. His decision was reviewable on conventional judicial review grounds, not simply because the court might have reached a different conclusion.
4. The prosecution’s decision to offer no evidence did not determine the section 133 question. Nor did the principal witness’s hostility establish that no conviction could possibly have been based on the remaining evidence. The Court of Appeal had ordered a retrial because evidence from other witnesses remained, and the claimants’ confessions might have been admissible and evaluated by a jury.
5. The Secretary of State was not required to conduct a detailed trial-style analysis of the evidence. His short reasons accurately identified the continued evidence supporting a retrial and the possible relevance of the confessions. Any procedural shortcomings concerning delay or failure to invite further comment caused no prejudice or substantive unfairness.
6. There was also no practical purpose in quashing the decisions for reconsideration under the amended section 133 regime, since the claimants accepted that their claims could not satisfy the amended statutory definition of miscarriage of justice.

• Court of Appeal (Criminal Division): the convictions were quashed and a retrial ordered on four counts in [2010] EWCA Crim 2849.
• High Court (Administrative Court): the judicial review claims were dismissed.