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

For statutory compensation following a quashed conviction, fresh evidence qualifies as a Category 2 miscarriage of justice only where it undermines the prosecution case so completely that no conviction could possibly be based on it. Evidence that weakens the case but leaves a significant case capable of being tried is Category 3 and falls outside the scheme. An unresolved application is governed by a statutory amendment taking effect before final determination. Judicial review cannot substitute a decision which the original decision-maker could not lawfully make.

The claimant’s convictions for theft and unlawful wounding were quashed by the Court of Appeal (Criminal Division) after the principal prosecution witness admitted lying about material matters. He applied to the Secretary of State for compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State concluded, applying the Category 2 test identified in R (Adams) v Secretary of State for Justice [2011] UKSC 18, that the fresh evidence did not establish a miscarriage of justice. While the judicial review claim remained pending, section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 narrowed the statutory definition. The issues were whether the decision was lawful, what test applied on any remission, and whether the High Court could substitute its own decision.

1. The Divisional Court dismissed the claim. Burnett LJ gave the principal judgment, with which Hickinbottom J agreed.

2. For Category 2 under section 133 of the Criminal Justice Act 1988, the question is whether the new fact so undermines the evidence that a conviction could not possibly be based upon it. The relevant fact was the witness’s admission that parts of his evidence were untruthful, not the prosecuting counsel’s broader opinion that no part of his evidence was capable of belief.

3. The remaining evidence left a real possibility of conviction for unlawful wounding. The witness maintained that the claimant struck him with a glass after receiving the stick, he had sustained serious injuries, there was supporting evidence from his daughter, and the claimant accepted that an altercation occurred. The fresh evidence therefore reduced the strength of the case without removing the significant case against him. It was a Category 3 case, outside the statutory compensation scheme. The theft conviction was neither Category 1 nor Category 2.

4. The court applied the Category 2 formulation in R (Adams) v Secretary of State for Justice [2011] UKSC 18. The confession cases in that decision were not analogous because, once the confessions were excluded, no evidence remained.

5. Section 175 of the Anti-social Behaviour, Crime and Policing Act 2014 clearly provides that an application whose right to compensation had not been finally determined when the provision took effect is governed by the new definition in section 133(1ZA). A fresh decision after remission would therefore have to apply the new definition.

6. Section 31(5)(b) of the Senior Courts Act 1981 could not authorise substitution. Section 31(5A) limits that power to decisions made by a court or tribunal, whereas the Secretary of State was neither. The claim was dismissed.

• Court of Appeal (Criminal Division): quashed both convictions; [2009] EWCA Crim 430.
• High Court (Administrative Court): dismissed the judicial review claim.