Ahmed Mohamed Ali Adan, R (on the application of) v The Secretary of State for Justice

Section 133 of the Criminal Justice Act 1988 requires the new or newly discovered fact relied upon to show, beyond reasonable doubt, that the applicant did not commit the offence. Evidence which merely weakens the prosecution case or makes another person more likely to be the perpetrator is insufficient.

The Secretary of State must reach his own conclusion. The inquiry requires consideration of the wider case to understand the significance of the fresh evidence, but it is not a retrial based on all the evidence. Judicial review applies conventional public law principles, including rationality. A decision is not irrational merely because the decision-maker could have analysed the evidence more fully, provided the conclusion falls within the range of reasonable conclusions open on the evidence.

The claimant’s convictions for two indecent assaults were quashed by the Criminal Division of the Court of Appeal after enhanced DNA testing linked a mobile phone found near one offence to another man, S. The Court of Appeal considered that the fresh evidence rendered the convictions unsafe, but did not determine that S was the perpetrator.

The claimant applied for compensation under section 133 of the Criminal Justice Act 1988. The Secretary of State refused the application, concluding that the new DNA evidence did not show beyond reasonable doubt that the claimant had not committed the offences. The claimant sought judicial review on grounds of irrationality. The central issue was whether that conclusion was rationally open to the Secretary of State.

1. The claim was dismissed. The decision that section 133 was not satisfied was rationally open to the Secretary of State.
2. Section 133, as amended, is confined to cases in which the new or newly discovered fact shows beyond reasonable doubt that the applicant did not commit the offence. Evidence which merely renders a conviction unsafe, or establishes a Category 2 case under Adams, is insufficient. The claimant therefore had to establish that the fresh evidence showed beyond reasonable doubt that S committed the assaults and that the claimant did not.
3. The Secretary of State had to reach his own conclusion on the statutory test. The inquiry focused on what the fresh fact showed, but necessarily required the wider case to be considered so that the significance of the fresh evidence could be understood. It did not require a retrial based on all the evidence. This approach was consistent with Kay and Ali.
4. The decision was subject to ordinary public law principles. Rationality concerned both the range of reasonable outcomes and the reasoning process, including serious logical or methodological errors, unsupported important steps, or an unexplained evidential gap. The structured approach described in Law Society and Wells did not impose a different test.
5. The enhanced DNA evidence materially weakened the identification evidence and made it more likely that S was involved. However, it did not establish that the phone had been used during the assault, that S had dropped it, or that it had been at the scene at the relevant time. The independent identifications of the claimant remained relevant. S’s Turkish background, possession of a mountain bike and unrelated 2003 sexual offence were not conclusive.
6. The omission of specific discussion of the complainants’ descriptions was an arguable omission but did not establish irrationality. The decision-maker had read the relevant materials and could reasonably conclude that there remained a reasonable doubt whether S, rather than the claimant, was the attacker.

The claimant’s convictions were quashed by the Criminal Division of the Court of Appeal in [2021] EWCA Crim 201 because the fresh DNA evidence rendered them unsafe. The Court of Appeal refused a retrial. The Secretary of State subsequently refused compensation under section 133 of the Criminal Justice Act 1988. The Administrative Court dismissed the judicial review claim.