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

For compensation under section 133 of the Criminal Justice Act 1988, the Secretary of State must apply the Category 2 test in R (Adams) v Secretary of State for Justice: the new fact must undermine the evidence so thoroughly that no conviction could possibly be based on it. That test differs from the prosecution test, a submission of no case, and the test for quashing an unsafe conviction.

A prosecution decision not to proceed does not determine entitlement to compensation. The Secretary of State must reach his own conclusion, having regard to the criminal court’s judgment but not being bound by it. Judicial review remains confined to conventional public law grounds.

The claimant’s rape conviction was quashed by the Court of Appeal (Criminal Division) after new witness evidence undermined the complainant’s credibility. The Crown had accepted that, had the evidence been available earlier, the prosecution would not have passed the Full Code Test, but also accepted that a rape might nevertheless have occurred.

The Secretary of State refused compensation under section 133 of the Criminal Justice Act 1988, applying the Category 2 test in Adams. The claimant sought judicial review on irrationality, factual and legal error. The court also considered, although it did not need to decide it, the effect of section 175 of the Anti-social Behaviour, Crime and Policing Act 2014.

1. Claim dismissed. The Secretary of State’s refusal of compensation was not unlawful. It was based on a correct understanding of the law and facts and was neither irrational nor unreasonable.
2. The applicable test was the Category 2 test identified in R (Adams) v Secretary of State for Justice: whether the new or newly discovered fact had so undermined the evidence against the claimant that no conviction could possibly be based on it. That test was materially different from the Code for Crown Prosecutors Full Code Test, a submission of no case, and the Court of Appeal’s test for determining whether a conviction was unsafe.
3. The Crown’s view that it would not have prosecuted had the new evidence been available was not determinative. It reflected the Crown’s assessment that an acquittal was more likely than a conviction. It did not establish that conviction was impossible, did not bind the Court of Appeal, and had not been adopted by that court.
4. The Court of Appeal had decided only that the fresh evidence was admissible, capable of belief and sufficiently undermined the complainant’s credibility to render the conviction unsafe. It had not decided that the evidence showed beyond reasonable doubt that there was insufficient evidence on which the claimant could be convicted, or that he could not possibly have been convicted.
5. The remaining evidence included the complainant’s account, the fact that the new witnesses were absent during the alleged offence, the absence of any retraction, and matters supporting the possibility of conviction. The case was not one in which a judge would have been required to withdraw it from the jury under R v Galbraith.
6. The question concerning section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 did not arise for determination. The judge indicated that, if necessary, he would have been strongly inclined to accept the Secretary of State’s construction that a decision quashed after commencement had not been finally determined before commencement.

The claim was a judicial review of the Secretary of State’s compensation decision. Permission was granted by Cranston J on 10 July 2014. The underlying criminal conviction had previously been quashed by the Court of Appeal (Criminal Division) in [2011] EWCA Crim 347.