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When is a wrongful conviction not a miscarriage of justice? This was the riddle that recently occupied a nine-judge panel of the Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18. The question arose in an appeal brought by three men who had been refused compensation under the statutory scheme established to provide financial redress to the victims of miscarriages of justice. Eligibility for compensation depended upon whether or not the Secretary of State considered that a “new or newly discovered fact” demonstrated beyond reasonable doubt that there had been a “miscarriage of justice” within the meaning of section 133 of the Criminal Justice Act 1988. The interpretation of this provision – and in particular the exact meaning of the expression “miscarriage of justice” – therefore had important consequences for the scope of the scheme and the circumstances in which compensation will be payable following the reversal of a criminal conviction.

The correct construction of s. 133 divided the Supreme Court in Adams. In a lengthy and complex judgment, a bare majority of five Justices held that the statute does not require a claimant to prove beyond reasonable doubt that he was actually innocent of the offence in question. Instead, it is enough if the applicant can show that a new fact so undermines the case against him that no conviction could possibly be based upon it. In reaching this conclusion, the Court also touched upon a number of other important issues including the relationship between the statutory scheme and the presumption of innocence enshrined in Article 6(2) ECHR, the meaning of “new or newly discovered fact”, and the ability of the Court of Appeal to make declarations of innocence in criminal cases.

Factual Background

Each of the appellants had been convicted of murder and sentenced to life imprisonment. In each case the Court of Appeal subsequently quashed the conviction following a reference from the Criminal Cases Review Commission. In the case of the first appellant, Mr Adams, his representatives had failed to consider unused evidence disclosed by the police before his trial. This evidence would have undermined the testimony of the only prosecution witness. The Court of Appeal stated that if the evidence had been considered and deployed at trial the jury might not have convicted Mr Adams. This was sufficient to render his conviction “unsafe” for the purposes of s. 2 of the Criminal Appeal Act 1968.   This did not mean that he would  have inevitably been acquitted if the material had been deployed. In the case of the second and third appellants, evidence that supported their assertion that incriminating admissions had been obtained by police ill-treatment was not disclosed to the judge who tried them. In quashing their convictions, the Court of Appeal commented that the new evidence left them with a “distinct feeling of unease” about the safety of the guilty verdicts.

The Court of Appeal did not order a retrial in any of the appellants’ cases. (If there had been a retrial, the appellants could only have applied for compensation if they were acquitted at the retrial: s.133(5A). This was the position of Barry George, who, along with JUSTICE, was granted permission to intervene). The appellants accordingly applied for compensation under the statutory scheme established by the CJA 1988. However in each case the Secretary of State refused the application on the basis that the appellant could not prove that a “miscarriage of justice” had occurred. In the case of Mr Adams, the Secretary of State also refused the application on the ground that Mr Adams had not shown that his conviction had been reversed by reason of a “new or newly discovered fact”.

The appellants brought judicial review proceedings challenging the Secretary of State’s refusal to award them any compensation. After the High Court and Court of Appeal had rejected the claims, the appellants were granted permission to argue their case before the Supreme Court.

The legislative framework

Section 133 of the Criminal Justice Act 1988 creates a right to compensation for the victims of miscarriages of justice. The section provides that:

“(1) …when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction…”

In order to qualify for compensation under s. 133, a “new or newly discovered fact” must have come to light which shows “beyond reasonable doubt” that the defendant was the victim of a “miscarriage of justice”.  The section only applies to appeals against conviction that are brought out of time; at present, there is no statutory right to compensation following successful appeals brought within time.

Section 133 was enacted to implement the United Kingdom’s international obligations under Article 14(6) of the International Covenant on Civil and Political Rights (“ICCPR”). Accordingly, the statutory language of s. 133 is almost identical to the wording of Article 14(6).

The meaning of “miscarriage of justice” in s. 133 was previously considered by the House of Lords in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1. In that case Lord Steyn concluded that the phrase only covered the conviction of someone who was later shown to be innocent. Lord Bingham doubted whether this narrow construction was correct. He made reference to cases where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted. Subsequent cases had then attempted to reconcile, or choose between, the different approaches of Lord Steyn and Lord Bingham, but had not resolved the issue.

Meaning of “miscarriage of justice” – Decision of the Supreme Court

In the Court of Appeal in Adams Dyson LJ identified four possible categories of miscarriage of justice. This fourfold categorisation was used as a framework for discussion when the Supreme Court came to analyze the correct construction of s. 133. The categories described by Dyson LJ were:

“Category 1” – Cases where fresh evidence shows that the defendant is innocent of the crime of which he has been convicted.

“Category 2” – Cases where fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could have properly convicted the defendant.

“Category 3” – Cases where fresh evidence renders the conviction unsafe in that, had that evidence been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.

“Category 4” – Cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

In the Supreme Court the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) preferred a broader construction than the minority (Lord Judge, Lord Brown, Lord Rodger and Lord Walker) would have adopted. The minority would have limited the scope of s. 133 to cases where the claimant could show beyond reasonable doubt that he was actually innocent of the crime of which he was convicted (i.e. category 1 cases only). The majority thought that this interpretation was too narrow. Instead, they held that a miscarriage of justice should be deemed to have occurred whenever a new fact “so undermines the evidence against the defendant that no conviction could possibly be based upon it.” This formulation extends beyond category 1 cases and covers the cases that would fall within a tightly defined version of category 2 as well.

All nine justices agreed that the so-called “category 3” and “category 4” cases lay outside the scope of s. 133. They also unanimously held that it is the responsibility of the Secretary of State to decide in each individual case whether or not the applicant has suffered a “miscarriage of justice” within the meaning of the legislation.

The majority judgments

Lord Phillips began his judgment by looking at extrinsic sources of guidance on the construction of s. 133. He noted that parliamentary material concerning the passage of the CJA 1988 threw no light on the correct meaning of s. 133, save that it demonstrated that “the intention of Parliament in enacting section 133 was to give effect to the obligation imposed by article 14(6)”. He therefore proceeded to examine the drafting history and application of that provision. According to Lord Phillips, the travaux préparatoires indicated that the signatories to the ICCPR had not been prepared to limit the scope of Article 14(6) to cases where the defendant was conclusively proved innocent of the crime. Moreover, the French practice under that Article “demonstrate[s] that proof of innocence has not been universally adopted as the test of entitlement to compensation”. However despite these indicia, overall Article 14(6) provided only “limited assistance” to the correct interpretation of s. 133.

Lord Phillips then examined Mullen. He concluded that Lord Steyn’s narrow interpretation of s. 133 was largely founded on a misreading of the French text of Article 14(6), whilst Lord Bingham’s judgment had focussed on the meaning of “wrongful convictions” in the context of the previous ex gratia compensation scheme. In these circumstances, Lord Phillips said that Mullen was of little assistance in determining the meaning of “miscarriage of justice”. He therefore agreed with Lord Hope that a “fresh approach” was now required.

According to Lord Phillips, the primary objective of s. 133 is “to provide entitlement to compensation to a person who has been convicted and punished for a crime that he did not commit”. However alongside this lies a subsidiary objective, namely that “compensation should not be paid to a person who has been convicted and punished for a crime that he did not commit.” In interpreting s. 133, the Court should have regard to these two competing objectives and to whether the wording of the section allows a balance to be struck between them.

Applying this approach, Lord Phillips held that category 4 cases fell outside the ambit of s. 133. This category has no bearing upon the primary purpose of s. 133 (providing compensation to those convicted of crimes that they did not commit). It would also undermine the subsidiary purpose of the legislation, since it would result in the payment of compensation to criminals whose guilt was not in doubt.

Lord Phillips also held that category 3 cases should be excluded from s. 133. In his view the inclusion of category 3 would not strike a fair balance between the two objectives of the legislation, since the class will inevitably include a “significant number who in fact committed the offences of which they were convicted”.

Lord Phillips then turned to consider whether s. 133 should be confined to category 1 cases only. He ruled that it should not, offering two principal reasons why this was so. First, the state parties to Article 14(6) had voted against an amendment that would have had precisely this effect. Secondly, he observed that such a limitation

“will deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude from entitlement to compensation those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation.” [50]

However Lord Phillips then went on to reject Dyson LJ’s second category (fresh evidence such that, had it been available at the trial, no reasonable jury could have convicted the defendant). This was not a satisfactory test either. Instead, Lord Phillips proposed the following “more robust” standard:

“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.” [55]

Lord Hope agreed with Lord Phillips’ formulation, adding that in cases that fall within this category “it will have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place.” [96] Lord Hope agreed that Dyson LJ’s category 2 test was “too broadly framed for use as a reliable guide as to what falls within the scope of section 133”.

Lady Hale and Lord Kerr also agreed with Lord Phillips. Lady Hale considered Lord Phillips’ approach to be “more consistent with the fundamental principles upon which our criminal law has been based for centuries” than the test favoured by the minority. Since an accused does not have to prove his innocence at trial, “it seems wrong in principle that he should be required to prove his innocence now” [116]. Lord Kerr explained that he would have proposed a test of “whether, on the facts as they now stand revealed, it can be concluded beyond reasonable doubt that the applicant should not have been convicted”. However in his view this achieved the same result as Lord Phillips’ test, and he was therefore content to subscribe to Lord Phillips’ formulation [178].

Lord Clarke endorsed Lord Phillips’ test, although he too expressed it slightly differently. In his view, the correct question is whether, on the new material, the defendant had a case to answer or, put another way, whether a reasonable jury could have convicted him [210]. However Lord Clarke also went further and said that the test potentially includes a case where the new material is such that, if it had been known at the trial, the trial judge would have stopped the trial on the grounds of abuse of process. If the Court of Appeal subsequently concludes that the abuse cannot be cured by a new trial, it follows that no reasonable jury could convict and there must therefore have been a miscarriage of justice within the meaning of the statute [212].

Meaning of “miscarriage of justice” – The dissenting judgments

Four Justices dissented on the meaning of “miscarriage of justice”. Lord Judge CJ considered that s. 133 should be “confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent”. In his view, the fact that the statute had deliberately eschewed the civil “balance of probabilities” test in favour of the more onerous criminal standard (“beyond reasonable doubt”) was a significant pointer towards this conclusion. He explained that s. 133 required that “the emergence of a new or newly discovered fact should demonstrate not only that the conviction was unsafe, or that the investigative or trial processes were defective, but that justice had surely miscarried”. The “ultimate and sure miscarriage of justice is the conviction and incarceration of the innocent”. He accordingly believed that “noting less will do” and that “no alternative or half-way house or compromise solution consistent with this clear statutory provision is available” [249].

Lord Brown agreed with Lord Judge’s analysis but was “so troubled” by the majority’s reasoning that he decided to give his own judgment too. He drew on Lord Phillips’ analysis and argued that limiting s. 133 to “category 1” cases would make sense of the requirement that the new facts should prove the requisite status “beyond reasonable doubt” and would give the section a meaning which is both “perfectly natural and logical” and “eminently practicable” [277].

Lord Brown complained that the majority’s formulation would embrace many cases where the quashing of a guilty verdict was more appropriately characterised as “a vindication of the rule of law” than “the righting of a mistaken verdict” [276]. He recognised that his favoured construction would exclude from compensation a few people who are truly innocent. However this was preferable to compensating a “considerable number” who are actually guilty [281]. He made little attempt to hide his dismay at the outcome produced by the majority’s test, commenting that “the man on the street” would be “appalled at a construction which…would not infrequently result in the compensation of the guilty, sometimes…to the extent of hundreds of thousands of pounds” [277].

Lord Rodger agreed with Lord Brown, and Lord Walker agreed with both Lord Judge and Lord Brown.

Relationship with the presumption of innocence

The relationship between s. 133 and the presumption of innocence formed the focus of some of the claimants’ submissions. Article 6(2) of the European Convention on Human Rights enshrines the presumption of innocence in the following terms:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

In recent years the Strasbourg Court has held that one of the functions of Article 6(2) is “to protect an acquitted person’s reputation from statements or acts that follow an acquittal which would seem to undermine it” (Taliadorou and Stylianou v Cyprus (Application Nos 39627/05 and 39631/05) (unreported) 16 October 2008). In Adams, it was argued that a refusal to provide compensation to an individual following the quashing of his conviction violated Article 6(2).

The Supreme Court unanimously rejected this argument; however the Justices provided a range of different reasons for reaching this conclusion. Lord Phillips (with whom Lady Hale agreed) argued that s. 133 does not make the right to compensation conditional on proof of innocence by the claimant. Instead, the right to compensation under the statutory scheme depends upon whether a new or newly discovered fact shows conclusively that a miscarriage of justice has occurred. This is a different issue to proving innocence, and therefore the presumption of innocence is not infringed [58].

Lord Hope (with whom Lord Kerr agreed) explained that the presumption of innocence means that “it is not open to the state to undermine the effect of the acquittal”. However it does not forbid comments on the underlying facts of the case in subsequent proceedings of a different kind. The procedure established by s. 133 requires the executive to take a decision on the question of entitlement to compensation which is “entirely separate from the proceedings in the criminal courts”. Lord Hope argued that s. 133 was a form of lex specialis, meaning that the general provision for a presumption of innocence does not have any impact on it. A refusal to award compensation under s. 133 because innocence has not been clearly demonstrated “does not have the effect of undermining the acquittal” [111].

Lord Clarke did not agree that s. 133 was a form of lex specialis [230]. However he pointed out that the test under s. 133 is not innocence and the burden of proof is different to that in a criminal trial [233]. In his view, there was therefore no possibility that anything said or done in s. 133 proceedings could impugn the acquittal in criminal proceedings. It followed that the s. 133 test was entirely compatible with Article 6(2) [235].

Lord Judge (with whom Lord Rodger, Lord Brown and Lord Walker agreed) stated that once a conviction has been reversed the presumption of innocence applies. However an acquittal/successful appeal against conviction does not operate as an absolute bar to litigation. He referred to Article 3 of Protocol No. 7 to the ECHR. This Article (which the UK has not signed) is almost identically worded to Art. 14(6) of the ICCPR. Lord Judge explained that if the claimant was correct that Article 6(2) means that the reversal of a conviction automatically triggers a right to compensation, the result would be inconsistent with the wording of Article 3 of Protocol No. 7, which does not demand this outcome. He thought that, reading the Convention as a whole, this could not be right. [256]

Court of Appeal’s power to declare innocence

Another area of disagreement within the Supreme Court concerned the question whether the Court of Appeal has jurisdiction to declare an appellant “innocent” of a criminal offence. Lord Phillips said that it does not [45]. He referred to the decision of the Court of Appeal in R v McIlkenny (1991) 93 Cr App R 287, where Lloyd LJ said that it was a principle  of “great constitutional importance” that the Court of Appeal cannot state that an appellant is innocent. Lord Phillips also quoted with approval from the decision of the Ontario Court of Appeal in R v Mullins-Johnson 2007 ONCA 720; 87 OR (3d) 425, which stated:

“Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence”.

Lord Kerr agreed that “[t]he Court of Appeal has no function or power to make a pronouncement of innocence”, although he also noted that “it may observe that the effect of the material considered in the course of the appeal is demonstrative of innocence” [172].

By contrast, Lord Judge disagreed with the statement in R v McIlkenny that the Court of Appeal is not “entitled” to state whether an appellant is innocent. He conceded that “[t]he processes of the Court of Appeal do not allow for a formal declaration of factual innocence, any more than the trial process recognises a verdict of ‘innocent’”. However if the evidence unmistakably indicates that the appellant is innocent then “the terms of the judgment should conscientiously reflect the true reasons” for the court’s decision to quash the conviction [251].

Lady Hale did not refer to the point at all, while Lord Brown (with whom Lord Rodger agreed) considered it unnecessary to decide the issue. Lord Clarke noted that there was authority for the proposition that the Court of Appeal is not entitled to declare an appellant innocent; however he expressed no view as to whether or not this was correct [206]. Lord Hope also expressed no view on the question, merely noting that, “courts of appeal…are not called upon to decide whether a defendant is innocent and in practice rarely do so” [95].

Meaning of “new or newly discovered fact”

The meaning of the phrase “new or newly discovered fact” was important to Mr Adams’ appeal, since the Secretary of State’s decision to refuse compensation was in part based upon the conclusion that Mr Adams had failed to satisfy this criterion.

Lord Phillips adopted the “generous interpretation” of this expression contained in s. 9 of the Irish Criminal Procedure Act 1993 [60]. According to that provision, a newly discovered fact means “a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings”. According to Lord Phillips, a claimant was not excluded from claiming compensation simply because he was aware of a fact at the time of the trial but had initially omitted to bring it to his lawyers’ attention. He explained that:

“Many who are brought before the criminal courts are illiterate, ill-educated, suffering from one or another form of mental illness or of limited intellectual ability. A person who has been wrongly convicted should not be penalised should this be attributable to any of these matters.” [63]

Lady Hale, Lord Kerr and Lord Clarke agreed with Lord Phillips’ definition. Lord Hope disagreed; he argued that material that had been disclosed to the defence by the time of the trial could not be said to be new or to have been newly discovered when it is later taken into account at the stage of the out of time appeal [107].

Lord Judge was of the view that merely because the defendant himself was personally ignorant of a particular fact, that fact is not “new” or “newly discovered” when the defendant later learns of it. Lord Hope agreed with Lord Judge in this respect. The correct approach, according to Lord Judge, was one that coincided with the circumstances in which fresh evidence is sought to be deployed before the Court of Appeal. This is regulated by s. 23 of the Criminal Appeal Act 1968, which usually requires that there should be a “reasonable explanation” for the earlier failure to adduce the evidence at the trial [266]. Lord Brown, Lord Rodger and Lord Walker all agreed with Lord Judge on this point.

Comment

Most lawyers are familiar with the old aphorism that: “It is better for 10 guilty men to go free, than for one innocent man to be imprisoned”. A modern twist, in the light of Adams, might be to ask if it is better for ten innocent men who cannot prove their innocence to go without redress than for one guilty man whose conviction has been quashed to receive compensation. The minority of the Supreme Court clearly thought that it would be; the majority were perhaps less sure.

The majority’s explanation for not confining “miscarriage of justice” to “category 1” actual-proof-of-innocence cases is convincing. As Lord Clarke noted, if Parliament had intended to limit compensation to cases where the claimant could actually prove innocence, it would have been easy for it to say so expressly. The fact that Parliament chose not to do this accords with the background, drafting history and application of Article 14(6) ICCPR.

Moreover, as a matter of principle it is strongly arguable that the harm caused by the wrongful compensation of the guilty is less serious than the harm that occurs whenever the truly innocent are denied compensation. In the case of the truly innocent, an award of compensation provides not only financial recompense for loss of liberty but a sense of moral vindication that comes from a formal recognition that they have been wronged by the state. In a society governed by the rule of law this is extremely important. It is surely unjust that someone who can show that he was probably innocent should be denied the compensation and vindication that he is morally entitled to on the ground that he is unable to establish his innocence beyond reasonable doubt.

Nevertheless, the formulation that commended itself to the majority still sets a high threshold. In practice it seems likely that most cases where convictions are quashed will fall into category 3 and will therefore continue to remain outside the ambit of s. 133. The decision is therefore likely to disappoint a fair number of individuals (such as Mr Adams) who are unable to meet this exacting standard.

Unfortunately several issues remain unclear in the light of the Supreme Court’s decision. The meaning of “new or newly discovered fact” is apparently still open to debate. Four of the five Justices in the majority adopted the definition contained in the Irish statute. The four dissenting Justices, on the other hand, would require the applicant to show that there was a “reasonable explanation” for the earlier failure to adduce the evidence at the trial. A majority (the four dissenting Justices and Lord Hope) agreed that a fact is not newly discovered just because a defendant who was previously unaware of it ceases to be ignorant of it. This lingering uncertainty is unsatisfactory and may well spawn further litigation in future.

Similarly, there is no clear answer to the Court of Appeal’s jurisdiction to declare innocence. Two Justices believed that it had no power to do declare innocence; one believed that it did, and the remaining six Justices offered no conclusive view. On a question that was described as being of “great constitutional importance”, it is regrettable that a panel of nine Supreme Court Justices was unable to provide a definitive answer.

The Court’s discussion of the presumption of innocence is notable for its relative brevity. All nine Justices held that there was no violation of Article 6(2); however some of the explanations offered in support of this conclusion are open to question. The analogy with civil proceedings brought by the victim of a crime seems less than compelling. The s. 133 regime is designed to deal with the consequences of criminal convictions which have been overturned by the Court of Appeal. Applications for compensation are made to, and decided by, an officer of the state. The outcome of such an application speaks directly to the propriety of the earlier verdict that the applicant was guilty of a criminal offence. Furthermore, the argument that the s. 133 procedure is wholly separate from the criminal process is difficult to reconcile with Lord Judge’s instruction that “the Secretary of State should pay the closest possible attention to the terms of the judgment of the Court” that quashed the conviction. In truth the compensation scheme is closely entwined with the criminal trial process, which is obviously subject to the presumption of innocence.

Lastly, the judgment in Adams may lead some to question the wisdom of convening nine-judge panels of the Supreme Court. Although there is no doubting the scholarly, thoughtful and thorough approach of the Justices in Adams, the seven reasoned judgments run to 284 paragraphs spread over 97 pages. As the length of this case comment attests, distilling the relevant legal principles is no straightforward process. In 2009 Lord Phillips expressed his hope that the establishment of the Supreme Court would see more single majority judgments. Adams shows that this ambition is yet to be realised.