Murphy, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 140 (Admin)

[2005] EWHC 140 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 10 February 2005

Before

THE HONOURABLE MR JUSTICE RICHARDS

THE HONOURABLE MR JUSTICE PITCHFORD

Case No CO/4967/2002

Between

The Queen (on the application of Bernard Murphy)Claimant

The Secretary of State for the Home DepartmentDefendant

Case No: CO/5267/2002

Between

The Queen (on the application of LB by her Mother and Litigation Friend Catherine Murphy)Claimant

The Secretary of State for the Home DepartmentDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Keir Starmer QC and Mr Hugh Southey (instructed by Keith Dyson) for Murphy

Mr Keir Starmer QC and Mr Hugh Southey (instructed by Stephensons) for LB

Mr Philip Sales and Mr Thomas Lindon (instructed by The Treasury Solicitor) for Defendant

Judgment

[1]This is the judgment of the court.

[2]In the early hours of 24 June 1991 Michael Pollitt was fatally wounded in a Manchester nightclub. On 17 February 1992, after a six day trial, Bernard Murphy and John Brannan were convicted of his murder and sentenced to life imprisonment. Their appeals against conviction were dismissed in December 1993. Their cases came back before the Court of Appeal (Criminal Division) in January 2002 on a second appeal following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995. On that occasion their convictions were quashed. In the meantime, however, Brannan had committed suicide in December 1999 while serving his sentence.

[3]Applications were subsequently made on behalf of Murphy and Brannan’s estate for compensation under section 133 of the Criminal Justice Act 1988 or the ex gratia scheme operated by the Secretary of State. The Secretary of State decided that neither applicant qualified for statutory compensation under section 133. Compensation under the ex gratia scheme was also refused. By the present proceedings the Secretary of State’s decisions refusing statutory compensation are challenged by Murphy and by Brannan’s daughter (who is entitled to benefit from her father’s estate). The decisions refusing compensation under the ex gratia scheme are not challenged.

[4]The case raises a number of issues concerning the application of the statutory conditions expressly relied on in the Secretary of State’s decision letters for refusing statutory compensation. Before us, the Secretary of State also adopted a fall-back position which would have required the court to choose between the rival views expressed by Lord Bingham and Lord Steyn in R (Mullen) v. Secretary of State for the Home Department

[2004] UKHL 18

[2005] 1 AC 1

on the meaning of “miscarriage of justice” in section 133(1). In the event it was unnecessary for us to go down that line since, having heard argument on the other issues, we were satisfied that the Secretary of State’s decisions were sustainable without recourse to the fall-back position.

[5]The following summary of the evidence at the original trial in 1992, the appeal in 1993 and the further appeal in 2002 is drawn from the 2002 judgment of the Court of Appeal.

The evidence at trial

[6]The prosecution case at trial was in essence that Brannan had stabbed Michael Pollitt, but that this was a joint enterprise. There was a history of ill feeling between Murphy and the victim, and Murphy had at one stage left the club, returning later. The prosecution alleged that on his return Murphy had had with him an axe and a knife. He was seen by various witnesses brandishing the axe at the victim and threatening to kill him. It was the prosecution case that the attack on the victim was one planned by both defendants.

[7]Murphy gave evidence at trial. He admitted possessing the axe though he denied that he left the club to obtain weapons. He said that he carried weapons for his own protection, particularly from the victim, who had threatened and assaulted him in the past. It was possible that in the heat of the moment he had threatened the victim but he had not come into contact with the victim at all during the stabbing and had no idea where Brannan was. There had been no agreement to harm the victim.

[8]Brannan did not give evidence at trial, nor did he call witnesses. His primary case seems to have been that he had not inflicted the fatal wound or at least that there was no satisfactory evidence to establish that he had.

[9]There was evidence from one prosecution witness that during the incident Pollitt had been holding a gun. Both Murphy and his sister Catherine Murphy gave evidence that Pollitt had approached Murphy holding a gun pointed at Murphy. Murphy described Pollitt pulling the trigger twice but the gun failing to go off. This led the trial judge to direct the jury, in relation to the issue of self-defence, that they should find the defendants not guilty if they thought that Pollitt had or might have had a gun in his hand.

[10]The issue of whether Pollitt had or might have had a gun was therefore a central issue in the case. The following prosecution witnesses' evidence was of particular relevance to that issue, either because of what they said at the trial or because of what emerged later: i) Lisa Worthington, the victim's girlfriend, gave evidence to the effect that Brannan had stabbed Pollitt. This came after Murphy had shouted to Pollitt that he was going to kill him and had got out an axe. She described another man getting hold of Murphy and pushing him to the side. Then Brannan came over with a knife in his hand and stabbed Pollitt. She denied vehemently that Pollitt had had a gun. ii) Michael Haslam, a doorman, said during cross-examination that he had seen Pollitt with a gun in his hand, holding it at waist level; it had jammed; Pollitt might have been trying to use it. In re-examination Haslam accepted that he had not said anything about a gun in either of his two statements to the police. (What did not emerge at trial was that on 26 June 1991 Haslam had reported to a police officer a conversation in which a taxi driver in the club had told him that Pollitt had aimed a gun at Murphy. The existence of this and other undisclosed material played a part in the second appeal and is considered below.) iii) Francis Dean, another doorman, gave evidence that he was not up at first floor level where the incident itself took place. He made no mention of a gun. iv) James "Shay" Power, the manager, was up at first floor level at the time and saw a crowd round Pollitt on the floor. He described Murphy holding an axe in a raised position and a man called Donnelly in contact with Murphy, holding his arms up. He made no mention of a gun. v) Brian "Crazy Horse" Clark, a taxi driver, gave evidence that he did not see the incident itself but saw someone on the floor. He also described a man, later identified as Murphy, holding what Clark thought was a knife and being restrained by another man. He saw no-one with a gun.

[11]There was evidence that both defendants had arrived at the police station together on 2 July and had subsequently been interviewed. Brannan gave "no comment" interviews. Murphy, after initially doing the same, gave a lengthy account of events in his fourth interview, on 3 July. In it he described Pollitt coming towards him calling him a "grass" and pulling out a gun. He saw Pollitt pull the trigger. Murphy pulled out his axe and raised it to head level. Pollitt was trying to get the gun to fire. Then Donnelly came over and got hold of Murphy, holding his hands and keeping him away from Pollitt. Donnelly left but came back saying that Pollitt had shot himself. Murphy said that he had not seen Brannan stab Pollitt, nor had the two of them gone into the club intending to kill Pollitt or cause him grievous bodily harm.

[12]On several occasions during this interview the officer [DS Bentley] put it to Murphy that no-one else had seen a gun that night. In the course of summing up the judge drew attention on two occasions to how the first reference to a gun had been in this interview. On the second of those occasions he referred to the Crown's case that the account had been given by Murphy some eight days after the incident and that Murphy had had ample time to create the story about a gun. As the Court of Appeal commented (at paragraph 18):

“It is clear that the fact, as it seemed to be, that the first mention of a gun came from Murphy and then only some eight days after the incident was being presented to the jury as potentially significant and capable of casting doubt on his version of events. In essence the suggestion was that the reference to Pollitt having a gun was a recent invention of Murphy's.”

[13]Murphy's evidence at trial was broadly in accordance with his account in interview. His sister Catherine gave evidence largely confirming his account.

The 1993 appeal

[14]The appeal was brought on the basis that there was available evidence from several witnesses that Pollitt had had a gun. The Court of Appeal heard evidence from five witnesses: i) Brannan himself told the court that he went to the club that night carrying a knife for his own protection. Trouble arose because Pollitt pushed his girlfriend Catherine Murphy away. He went over towards Pollitt to hit him but then saw Pollitt holding a gun at waist level. He thought Pollitt was going to shoot Murphy and he, Brannan, got his knife out and went forward for the gun. He had not intended to stab Pollitt, he had just reacted to the gun. The Court of Appeal contrasted Brannan’s evidence with Brannan’s defence at the trial and simply did not accept his account. ii) Michelle Driver knew Pollitt and both appellants. She described seeing Pollitt approaching the bar with a gun. In cross-examination she admitted that she had initially told the police that she had not been in the club. The Court of Appeal noted that it was unlikely that Murphy’s defence team at trial would have been unaware of the existence of Michelle Driver, and the court made adverse comments as to the reliability of her evidence. iii) Beverley Salt, who was Michelle Driver’s sister, said that she had seen Murphy with an axe in his hand, shouting. When she had looked around, there was another lad near the door with a gun in his hand. As in the case of Michelle Driver, the Court of Appeal noted that it was unlikely that Murphy’s defence team would have been unaware of the existence of Beverley Salt, and the court made adverse comments as to the reliability of her evidence. iv) Peter Gairns, who had deliberately absented himself from the trial, described a struggle between Murphy and Donnelly and seeing Pollitt in the doorway pointing a gun towards them. The Court of Appeal rejected his evidence utterly because of discrepancies in it, its conflict with earlier statements and his demeanour as a witness. v) Detective Constable Mortimer dealt with his report on a conversation with Christina White, a witness who had deliberately absented herself from the trial. She had told him on 29 June 1991 that there had been a confrontation between Pollitt and Murphy and that she saw Pollitt produce a gun and point it at Murphy who was armed with an axe. She said that she saw Pollitt point the gun at the floor and click the trigger three times but it did not fire. The Court of Appeal referred to the fact that, in proceedings against her for contempt of court, Christina White had given evidence on oath that there was no gun but pressure had been put on her by Murphy and his sister to give evidence that there had been a gun. For that and other reasons the court regarded any evidence she might give as quite worthless.

[15]The result was that the Court of Appeal did not regard the fresh evidence as credible. It described the case as having the hallmarks of a carefully prepared campaign by the two appellants: they went to ground for a number of days; they resurfaced at the same time; one stayed silent; the other, after initial silence, put forward the “gun defence”; once they failed at trial, there emerged fresh evidence to support the gun defence.

[16]In the judgment on the 2002 appeal it was noted that the Court of Appeal in 1993 had been influenced to a significant degree by the apparent failure of Brannan to tell his solicitors before trial that Pollitt had a gun, and that this factor must have had a profound effect on the way in which the court in 1993 approached its assessment of the fresh evidence. It was also noted that no weight seemed to have been attached to the evidence that Christina White had told DC Mortimer about Pollitt having a gun and had done so on 29 June 1991, some 4 days before Murphy gave his account to the police in interview.

The 2002 appeal

[17]The 2002 appeal was brought on two main grounds:(1) that in the light of further fresh evidence there was a real possibility that the jury would have concluded that Pollitt had or might have had a gun;

(2) that the Crown failed to disclose at trial material which was relevant to the defence, this material consisting of four police documents on or before 1 July 1991 recording information received that Pollitt had a gun.

[18]On this occasion the Court of Appeal heard evidence from the following five witnesses: i) Dominic Donnelly had not given evidence at the trial because he had told police in interview that he had been drunk and could not remember anything at the club. He told the Court of Appeal, however, that he had not wanted to get involved at the time. His evidence concerning the incident was that he had grabbed Murphy to calm him down during a heated exchange between Murphy and Pollitt. Pollitt had then come towards them and pulled out a gun. The Court of Appeal’s assessment of him, however, was that he was not an impressive witness and that a jury would have attached little weight to his evidence. ii) Francis Dean, one of the doormen who gave evidence at the trial, said that in that evidence he had missed out about one minute of what had happened, and had done so because he had been threatened. His evidence to the Court of Appeal was that when the manager had shouted from upstairs, he had run to the top of the stairs and had seen Pollitt with a little handgun sticking out from his body. The Court of Appeal reached the same conclusion about him as about Donnelly, taking an unfavourable view of his credibility. iii) Keith Dyson was a solicitor who had first been instructed in 1991 by Donnelly and had then acted for Murphy and Brannan, ceasing to act for Brannan before the committal hearing. He said that both Murphy and Brannan had mentioned Pollitt having a gun and had said this independently of each other before going to the police station on 2 July 1991. What they said dictated the legal advice given before the interviews, because it was not clear what case was going to be put to the two men: it was therefore decided originally that they should make no comment. Mr Dyson also said that he had received the account of DC Mortimer’s conversation with Christina White before trial and had made contact with her on quite a few occasions. She gave a very forceful account of what had happened, including the production of the gun by Pollitt. He had expected her to obey the summons to attend the trial. He said that the account she gave in the contempt proceedings was quite different from her account given to him. The Court of Appeal described Mr Dyson’s evidence as of significance and could see no reason why a jury would not have regarded Mr Dyson as a credible witness. iv) Karen Greenwood, Murphy’s fiancée, gave evidence that Murphy had come home in the early hours of the morning in question and had told her that Pollitt had a gun. The Court of Appeal described her as being more capable of belief than the doorman, Mr Dean. v) Barry Bolton, who was Karen Greenwood’s father, had taken her and Murphy to a caravan site in North Wales for the next three or four days. He said that during that time Murphy had told him about the incident and had described how the other man said that he would shoot him with a gun. The Court of Appeal described his evidence as being of no real significance.

[19]In addition to oral evidence, other material was placed before the Court of Appeal in a variety of forms. Of particular importance for present purposes is that certain facts concerning information provided to the police about Pollitt having had a gun were agreed as evidence before the court. By that means it was established (as set out in paragraph 55 of the judgment) that: i) There was an anonymous telephone call to the police from a female on 26 June 1991 at 14.04 hours to the effect that she had heard from two different sources that a bloke called “Cathead” (i.e. Murphy) was involved and that Pollitt had had a gun with him. This was recorded as message M9. ii) During a police interview with Haslam on 26 June 1991 at 14.45 hours, he had said that a taxi driver had told him that he had seen the whole incident, that Pollitt had had a small handgun which he aimed at Murphy, that the gun appeared to jam and that Brannan had then stabbed Pollitt. This was recorded as report A19. iii) Christina White telephoned the police on 26 June 1991 at 21.00 hours to say that she had witnessed the incident and would make a statement. This was recorded as message M13. (She was interviewed by DC Mortimer on 29 June 1991 when she gave him information about Pollitt’s possession of a gun, as recorded in his report and told by him in evidence to the court on the 1993 appeal: see paragraph 14(v) above.) iv) A known informant stated to the police on 1 July 1991 at 11.40 am that the club manager, “Shay” Power, had told him that Pollitt had pointed a firearm at Murphy but that when the trigger was pulled the firing pin fell out. This was recorded as message M21. v) As result of that last information the police decided to re-interview “Shay” Power about information relating to the firearm. (The date of that decision was unknown but it must have been before the re-interview on 4 July at 12.00 hours.)

[20]It was agreed that none of the above matters was disclosed to the defence before or during the course of the trial in 1992. It was also agreed, however, that those matters were disclosed before the hearing of the appeal in 1993. (Mr Starmer raised a question as to whether item (ii) had been disclosed before the 1993 appeal, but there is nothing before this court that could justify our going behind the agreed position as recorded in the 2002 judgment of the Court of Appeal.)

[21]The Court of Appeal also had put before it certain documents dealing with the information disclosed by Brannan to his solicitors before trial and the advice given to him by his legal advisers. This included an attendance note dated 13 September 1991, a letter dated 15 September 1991 from Brannan to his solicitor, and the instructions to trial counsel. That material indicated that Brannan knew that Pollitt was in possession of a gun but did not see him produce it.

[22]The last category of material put before the Court of Appeal consisted of transcripts of two tape-recorded conversations with Christina White. The first was an interview of her on 8 December 1991 by a private investigator, Stuart Greatbanks, working for Murphy’s solicitor. It was available to Murphy at trial, but not to Brannan. The second was a conversation between her and Brannan on or about 6 January 1991, which was available to Brannan at trial but not to Murphy.

[23]In its analysis of the evidence the Court of Appeal first considered the fresh witness evidence, making the comments on individual witnesses to which we have already referred, and concluding in paragraph 79 of the judgment:

“Nonetheless, taken by itself the oral evidence produced before us would not persuade us that these convictions were unsafe ….”

[24]Having dismissed arguments advanced on behalf of Murphy about the issue of joint enterprise, the judgment continued:

“80. That means that this case turns upon the issue of whether the jury might reasonably have concluded that Pollitt might have had a gun, had all the material now available been before them. Allied to this is the issue of the non-disclosure by the Crown of the matters set out in paragraph 55 of this judgment [i.e. the matters referred to at paragraph 19 above]. 81. It is clear to us that, by the time the jury retired to consider their verdicts, a great deal of emphasis was being placed on the apparent fact that the first mention of Pollitt having had a gun had come eight days or so after the killing, in the course of the long fourth interview of Murphy on 3 July 1991. The summing-up indicates that the Crown was suggesting that this was a story invented by Murphy during that intervening period. The judge … referred to that interview as being the first direct reference to the gun. The jury may well have accepted the Crown’s suggestion. 82. Yet the undisclosed material reveals that from as early as 26 June 1991, two days after the incident, the police had been receiving information from various sources to the effect that Pollitt had had a gun. Message M9 was merely an anonymous telephone call, but the other items were potentially of greater significance. The information passed on by Haslam in report A19 was quite detailed, including as it did a description of the gun appearing to jam – a description which accords with Murphy’s own account in interview and in evidence. The police clearly took seriously the information provided by the known informant about ‘Shay’ Power’s description of Pollitt pointing a firearm at Murphy, because they decided to re-interview Power. Yet neither the informant record (message M21) nor the decision to re-interview Power was disclosed to the Defence at trial. 83. Even under the disclosure procedures operative in 1991-1992, i.e. the Attorney-General’s Guidance of 1981, these items should have been disclosed, because they had ‘some bearing’ on the offence charged and the surrounding circumstances of the case. We do not find the points now made on behalf of the Crown generally persuasive. Message M9 would not have been devastating to Murphy’s case …. Report A19, dealing with Haslam’s interview on 26 June, was important and did add to the evidence he gave at trial …. 84. Indeed, this report A19 was potentially significant in two further ways. First, it illustrates how non-disclosure may have prevented the Defence from putting such references to a gun in cross-examination of prosecution witnesses, such as the taxi driver Clark, or from pursuing potential Defence witnesses disclosed by the material. Secondly, in the case of Haslam, report A19 might have made his evidence at trial about the gun seem more credible in the eyes of the jury. His was the only independent evidence at trial about Pollitt having had a gun, and we accept Mr Fulford’s argument that Haslam’s contention that he had mentioned the gun to the police must have seemed to the jury difficult to accept when the judge told them that ‘it is common ground that he did not’. The fact was that he had made mention of a gun to the police at the interview on 26 June. Had that been known to the Defence and to the jury, his evidence about the gun might have been regarded by the jury as more worthy of belief. 85. We return to the issue of the apparent ‘late invention’ by Murphy of the story of the gun. It is true … that the Defence at trial did have DC Mortimer’s report about his conversation with Christina White on 29 June, in which she referred to Pollitt having a handgun and clicking the trigger three times without it firing …. This was not used by the Defence to rebut the argument of late invention, apparently because until very late in the trial it was expected that Christina White would be giving sworn testimony. But whatever the reason, the end result was that the judge and jury were misled. It must be that prosecution counsel overlooked this particular report, because it was not consistent with the prosecution’s argument, recorded in the summing-up, that the gun story was something created by Murphy during the eight days before his substantive interview. Moreover, that argument must have been reinforced in the minds of the jury by the several references by officers during that interview to the ‘fact’ that nobody else had made reference to a gun. 86. All of this led to the emphasis placed by the judge in his summing-up on this ‘late invention’ point …. Given the crucial importance of the gun in the way the issues were left to the jury, the non-disclosure of material items and the way in which the jury may well have been unwittingly misled must cause concern. It had the effect of downgrading Murphy’s evidence about the gun and Haslam’s evidence along similar lines.”

[25]The judgment turned next to the topic of the fresh evidence given to the Court of Appeal in 1993. The court said that it was crystal clear that the court at that time was greatly influenced by the apparent fact that Brannan had not told his solicitors in 1991 that Pollitt had a gun. The conclusion reached in the 2002 judgment, however, was that “that reasoning cannot be sustained” in the light of the evidence now available as to the information given by Brannan to his solicitors in 1991. That evidence undermined reasoning which was of importance in the assessment of Brannan’s credibility in 1993. The judgment continued:

“89. It follows that this court cannot simply adopt the assessment of Brannan’s credibility and of his evidence which was made by the Court of Appeal in 1993. Some of the considerations which led that court to disbelieve his evidence remain, but the very significant ones just referred to are no longer valid. Since that court admitted his evidence in 1993 under section 23 of the Criminal Appeal Act 1968, we take the view that we should have regard to that evidence and treat it as having more credibility than it was seen as having in 1993. 90. This has repercussions for the assessment of the evidence of the other witnesses who gave evidence at that earlier appeal hearing. The Court of Appeal on that occasion was, in our view, influenced in that assessment by the conclusion it had reached about the main witness it had heard, Brannan …. 91. This court is in the position where it can only consider the factual material as given in evidence at the 1993 hearing, together with what was known about those witnesses and any other material relevant to their credibility. With the exception of Cairns, it does not seem to us that the fresh evidence given in 1993 can simply be treated as worthless. A jury might have been prepared to attach some weight to the evidence of Brannan, Driver and Salt. 92. So far as Christina White is concerned, we have already dealt with the issue of when Pollitt’s possession of a gun was first mentioned to the police. The evidence about her various statements concerning the substance of what she saw on the night in question does reveal an obvious conflict between, on the one hand, what she told the Crown Court during the contempt proceedings against her and, on the other hand, what she told DC Mortimer, Stuart Greatbanks and John Brannan. That conflict undoubtedly reduces the significance of her statements. Nonetheless, we do not believe that it renders those statements of no materiality …. [I]n our judgment her descriptions of Pollitt with the gun cannot be entirely disregarded.”

[26]Having dealt in that way with the implications of the fresh evidence heard in 2002 for the assessment of the evidence heard on the earlier appeal in 1993, the judgment concluded:

“93. We accept that all the evidence now available has to be looked at as a whole, including the evidence at trial, that given at the 1993 appeal hearing and the fresh evidence produced before this court. The situation has altered since 1993. Both Murphy’s evidence and Haslam’s evidence at trial, and Brannan’s evidence in 1993, may well have been discredited by factors which now appear to have been unjustified. There is a knock-on effect, as we have described, on the assessment of some of the other evidence given in 1993. When all the evidence now available about Pollitt’s possession of a gun is put together, we find it impossible to say that a jury hearing such evidence would necessarily have come to the same conclusion. 94. It has to be emphasised that the appellants were themselves partly responsible for the outcome both of the original trial and of the 1993 appeal. Brannan declined to give evidence at the trial, put forward a false defence and did not waive privilege for the 1993 hearing. Murphy had the tapes of Christina White’s conversation with Greatbanks available and chose not to use them, and both the appellants had the record of her interview by DC Mortimer available. As the Court of Appeal noted in 1993, Murphy’s defence team were likely to have been aware of the existence of Driver and Salt and yet they were not called to give evidence at trial. 95. Nonetheless, our task is to consider whether these convictions are unsafe or not. Because of the way in which the issue of the gun became of central importance when the charges were left to the jury, we have concluded that the totality of the evidence now available on that topic, if given at trial, might reasonably have affected the decision of the jury to convict these tow men. In those circumstances these convictions must be regarded as unsafe and therefore both appeals allowed.”

The applications for compensation

[27]Section 133 of the Criminal

Justice Act 1988 provides:

“(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed … 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 or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State. (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. … (5) In this section ‘reversed’ shall be construed as referring to a conviction having been quashed – (a) on an appeal out of time; or (b) on a reference (i) under the Criminal Appeal Act 1995 ….” (a) on an appeal out of time; or (b) on a reference (i) under the Criminal Appeal Act 1995 ….”

[28]The Secretary of State also operates an ex gratia scheme for the payment of compensation in certain circumstances falling outside section 133. It is unnecessary to consider the details of that scheme, since the refusal of ex gratia compensation is not the subject of challenge.

[29]Following the Court of Appeal’s judgment quashing the convictions in January 2002, applications for compensation were made to the Secretary of State on behalf of Murphy and the personal representatives of Brannan. Each application generated a certain amount of correspondence, but the essential reasoning of the Secretary of State for refusing the applications can be taken from a letter of 4 July 2002 relating to Brannan:

“In your initial application you submit that your client has a statutory right to compensation. However, the statutory provisions for payment of compensation are not met because Mr Brannan’s conviction was not reversed on the strength of any new material which might meet the terms of section 133(1). The conviction was reversed because the Court of Appeal concluded that with all the evidence now available about Mr Pollitt’s possession of a gun, the jury may have reached a different verdict. The new evidence about the existence of a gun does not satisfy the terms of section 133(1), as whether or not Mr Pollitt had (or might have had) a gun was a central issue at trial. In particular it was Mr Brannan’s co-defendant’s case that Mr Pollitt had a gun in his hand. The new evidence considered by the Court of Appeal about the existence of a gun therefore, was simply new evidence and this does not amount to a ‘new or newly discovered fact’. In your letter of application you state that the new fact you rely on is the existence of the information in the hands of the police at the time of the interviews with Mr Brannan and Mr Murphy. The fact that the police had received evidence about the existence of a gun at this stage was however known to Mr Brannan and his defence team at trial. Mr Brannan had the record of Christina White’s interview with DC Mortimer which took place on 29 June 1991 (3 days before Mr Brannan and Mr Murphy were interviewed). DC Mortimer’s report of this conversation stated that ‘she saw Pollitt produce a handgun and point it at Murphy’. Therefore I am afraid that again we are of the opinion that this element was a matter of evidence rather than a new or newly discovered fact. Further, even if this does amount to a new or newly discovered fact (which is denied), Mr Brannan’s conviction was not reversed ‘on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice’. The conviction was reversed on the ground that ‘because of the way in which the issue of the gun became of central importance when the charges were left to the jury, [the Court of Appeal] concluded that the totality of the evidence now available on that topic, if given at trial, might reasonably have affected the decision of the jury to convict’ (para 95). When making its decision, the Court of Appeal made it clear that it was looking at all the evidence now available as a whole, ‘including the evidence at trial, that given at the 1993 appeal hearing and the fresh evidence produced before this court’ (para 93). In other words it was not the material set out at paragraph 55 of the judgment which resulted in the conviction being overturned, but the combined effect of all the evidence considered by the Court of Appeal, including notably, Mr Brannan’s own evidence. The evidence given on appeal by Mr Brannan was of course very different to the defence he relied on at trial. Furthermore, non-disclosure of a number of the witnesses’ evidence was ‘wholly or partly attributable’ to Mr Brannan, thus again taking him outside the scope of the statutory compensation scheme. The Court of Appeal notes (at para 94) that Mr Brannan put forward a false defence at trial and declined to give evidence. Indeed as Mr Brannan’s defence was that he did not have a knife and had not inflicted the fatal wound the issue of the gun was deemed irrelevant by his defence team, who therefore chose not to amplify the evidence at their disposal pertaining to Mr Pollitt’s possession of a gun. The Court of Appeal specifically state that ‘it has to be emphasised that the appellants were themselves partly responsible for the outcome … of the original trial’. For all the reasons set out above, your client does not have a statutory right to compensation under Section 133 of the Criminal Justice Act 1988.”

[30]The letter went on to give reasons for the decision not to pay compensation under the ex gratia scheme.

[31]The same approach was applied in the case of Murphy, through the combined effect of letters dated 8 May, 4 July and 14 October 2002. As regards the “wholly or partly attributable” issue, the decision in relation to Murphy referred specifically to the Court of Appeal’s observation that Murphy’s defence team was likely to have been aware of Driver and Salt, yet they were not called to give evidence at the trial; and to the fact that Murphy knew at trial what Christina White had said about the gun.

The claimants’ case

[32]The focus of the claimants’ case is the material (“the undisclosed material”) showing that the police had received information about Pollitt’s possession of a gun before they interviewed Murphy and Brannan on 2-3 July 1991. That is the material referred to at paragraph 55 of the judgment of the Court of Appeal in 2002 (paragraph 19 above). It is described as undisclosed material because it was not disclosed to the defence before or during the course of the trial.

[33]Mr Starmer QC submits that in the light of that material it is difficult to see how the prosecution could properly have run the case at trial as it did. It should not have put forward the case that Murphy’s reference to a gun in interview was a recent invention; it should not have led in evidence the false assertions by the police, in that interview, that no-one else had seen a gun that night; and it should not have cross-examined Murphy and his sister Catherine, as must have been done, on the basis that the reference to a gun was a late invention and a lie. Moreover, if the material had been disclosed to the defence as it should have been, the defence could have deployed it in the cross-examination of Haslam, Power and Clark (who seems to have been the taxi driver referred to in report A19).

[34]There is undoubted force in those points, but the court does not have a full insight into the trial and we are far from persuaded that there was any impropriety in the conduct of the prosecution case. One of the oddities about the trial is that, although some of the information received by the police about Pollitt’s possession of a gun had not been disclosed, all parties did have DC Mortimer’s report about his conversation with Christina White on 29 June 1991 in which she referred to Pollitt having a gun; yet the case on late invention was still put by the prosecution and DC Mortimer’s report was not used by the defence to rebut it. This was commented on by the Court of Appeal at paragraph 85 of the 2002 judgment, where the court observed that prosecution counsel must have overlooked the report. The matter can be put no higher in relation to the undisclosed material.

[35]As indicated above, the undisclosed material was disclosed to the defence before the hearing of the appeal in 1993. It was relied on as one of Murphy’s grounds of appeal but was not referred to in Brannan’s grounds of appeal. It is recorded at the end of the 1993 judgment that counsel for Murphy “realistically conceded that [the relevant ground and one other ground] come back to this Court’s view of the evidence we heard, and if we did not find that evidence to be credible that was the end of those grounds also”. Mr Starmer does not accept that that concession was right, but it is far too late to seek to go behind it now.

[36]Mr Starmer’s submissions ultimately focused, however, on the judgment of the Court of Appeal in 2002. That has to be the focus of attention, since it is common ground that entitlement to compensation under section 133 depends upon the conclusions reached by the Court of Appeal in quashing the convictions. Mr Starmer analysed the Court of Appeal’s reasoning and submitted that the undisclosed material led to the re-evaluation of the 1993 judgment and was the most important factor in the decision.

[37]Mr Starmer took issue with each of the reasons given in the Secretary of State’s decision letters for holding that the claimants were not entitled to compensation. This was the main area of contest before us, with Mr Sales submitting on behalf of the Secretary of State that the reasons given were sound and that any one of them was sufficient to sustain the decision.

[38]But, as already mentioned, the Secretary of State also had a fall-back position, namely that in this case there has not been shown to be a “miscarriage of justice” within the meaning of section 133. Mr Sales submitted that that position was inherent in the decision letters themselves, read as a whole, so that a challenge to the decisions could not succeed unless the position were shown to be wrong. Alternatively, the point was relied on as going to the court’s discretion to withhold relief, in that if the Secretary of State’s position were correct the result would inevitably be the same even if the existing decisions were quashed and the matter fell for reconsideration.

[39]The Secretary of State’s case on “miscarriage of justice” is the same as that advanced before the House of Lords in Mullen. It was expressed in this way by Lord Bingham at paragraph 9 of the judgment:

“The central submission of the Secretary of State was that section 133 … obliges him to pay compensation only when a defendant, finally acquitted in circumstances satisfying the statutory conditions, is shown beyond reasonable doubt to be innocent of the crime of which he had been convicted.”

[40]Lord Bingham said that he need form no concluded opinion on that submission (since the appeal could be decided on a limited basis which it is unnecessary to consider here), but he would hesitate to accept it. He gave detailed reasons why that was so. The first, at paragraph 9(1), was that “miscarriage of justice” is not a legal term of art and has no settled meaning. Like “wrongful conviction” it can be used to describe the conviction of the demonstrably innocent; but, again like “wrongful conviction”, it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted. The comparison with “wrongful conviction” takes one back to paragraph 4 of the judgment, where Lord Bingham said this:

“The expression ‘wrongful convictions’ is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they are convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. … It may be because evidence helpful to the defence was concealed or withheld. … In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such cases is that 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.”

[41]That is the reasoning that Mr Starmer seeks to apply to the present case, submitting that the undisclosed material shows that Murphy and Brannan should not have been convicted at trial on the basis on which the prosecution put its case, and that a miscarriage of justice has therefore been established. We should make clear that Mr Sales takes issue with Mr Starmer’s analysis of Lord Bingham’s reasoning and its application to the present case; but, as explained below, we do not need to develop or resolve the issue.

[42]Lord Bingham’s hesitation about accepting the Secretary of State’s submissions in Mullen was not shared by Lord Steyn. In a lengthy speech, he concluded that the words “miscarriage of justice” have the same meaning as in the international instrument on which section 133 is based and that the meaning extends only to “clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”. If that is the correct interpretation of the words, the claimants in the present case face on any view an uphill task in showing that there was a miscarriage of justice, though Mr Starmer made no concession on the point.

[43]Whether the correct approach to section 133 is that suggested by Lord Bingham (without, however, reaching any final conclusion) or that expressed by Lord Steyn (with a clear conclusion) is an open question. Lord Scott said that it was unnecessary to express a concluded view on the issue. Lord Rodger, whilst saying that it was not necessary for the decision on the appeal, accepted the arguments advanced by Lord Steyn. Lord Walker referred to the reasons for Lord Steyn’s conclusion as “powerful” but said that he would go no further than the limited ground for allowing the appeal identified by Lord Bingham.

[44]Mr Sales came equipped to re-run the issue left open in Mullen, where he had also appeared for the Secretary of State. Despite the obvious enthusiasm of counsel for that course, we took the view that the issue left open in Mullen should be addressed only if it proved necessary for the decision in the present case. We therefore decided to hear argument first on the other issues, concerning the reasons expressly given in the Secretary of State’s decision letters, on the assumption that the views expressed by Lord Bingham in Mullen were correct and had been correctly analysed by Mr Starmer, i.e. on the basis most favourable to the claimants. Having heard argument on those matters, we concluded that the claimants’ challenge to the decisions must fail and that it was unnecessary for us to hear further, detailed submissions on Mullen.

[45]We therefore turn to consider the issues on which we heard full argument, namely(1) whether the matters relied on by the claimants amount to a “new or newly discovered fact” within the meaning of section 133;

(2) if so, whether the convictions were quashed “on the ground that” such new or newly discovered fact showed that there had been a miscarriage of justice; and

(3) whether the non-disclosure of the unknown fact was “wholly or partly attributable” to the persons convicted. There was also some argument about whether the “shows beyond reasonable doubt” condition had been met; but this is closely related to the “miscarriage of justice” issue left open in Mullen and is not necessary for our decision, so that in those circumstances we think it best left on one side. Issue (1):

“new or newly discovered fact”

[46]The first reason given in the decision letters for the refusal of compensation is that the new evidence about Pollitt’s possession of a gun does not amount to a “new or newly discovered fact” but is simply new evidence of a matter that was in issue at the trial. Mr Starmer submits that that is wrong. New evidence can be a new or newly discovered fact even if it does relate to an issue at trial. For example, at trial there may be an issue as to identification. Later evidence (e.g. in the form of a confession and/or DNA evidence) may show that the true offender was someone else and that the identification of the defendant at trial was erroneous. It would be absurd if the subsequent evidence could not amount to a new or newly discovered fact because the identity of the offender was in issue at the trial.

[47]Mr Sales seeks to meet this challenge in two ways. He submits first that the decision letters were right to draw the distinction they did between evidence and fact; and secondly, that even if the matters relied on amount to a “fact”, they are not a “new” or “newly discovered” fact within the meaning of section 133.

[48]In support of the first point, Mr Sales cites two authorities. First, in R v. Secretary of State for the Home Department, ex parte Priestley [1994] COD 505 an appeal had succeeded on a limited ground relating to misdirection of the jury. The Court of Appeal had not considered further grounds, including one that relied on a post-trial statement by a co-defendant exonerating the applicant. Statutory compensation was refused. A challenge to the refusal was rejected because(1) the conviction had not been quashed on the ground of the new evidence; and

(2) in any event it was not certain that, if the Court of Appeal had considered the further grounds of appeal, it would have quashed the conviction. In relation to (2) the court stated:

“For example it might not have found the witness … credible. In other words, new or newly discovered evidence is not the same as new or newly discovered facts.”

(emphasis added)

[49]The second authority is R v. Home Secretary, ex parte Garner and Others (1999) 11 Admin LR 595. In that case one of the applicants, Taylor, sought compensation following the quashing of his conviction on an appeal in which he had relied on fresh evidence. Counsel for the Secretary of State argued that the matters relied on were not “new facts”: the Court of Appeal had indicated that the fresh evidence might have assisted the applicant in certain respects at trial but did not make any findings of fact. The court concluded (at 608g-609a):

“As to Taylor’s reliance on s.133, his circumstances, in our judgment, plainly fail to meet the statutory test. The admission of new evidence by the Court of Appeal did not result in any findings of fact as to the reasons for his presence in the flat, as to the width of the hallway or as to the concurrence of the officers’ notebooks. The court quashed the conviction because the new evidence lent support to the contention that lack of legal representation may have meant that the trial was not fair. There is a clear and fundamental distinction between evidence and facts ….”

(emphasis added)

[50]It seems to us that those authorities do not get Mr Sales very far. We would certainly accept the distinction drawn in them between evidence and fact. Evidence that ‘x’ is the case does not make ‘x’ a fact: for example, the evidence may not be not credible (as posited in Priestley) or it may in any event not result in relevant findings of fact (as happened in Garner). We do not read the decision letters in this case, however, as being based on that simple distinction between evidence and fact. The reasoning appears to be that, because Pollitt’s possession of a gun was in issue at the trial, new evidence relating to that issue cannot meet the statutory condition as to a “new or newly discovered fact”. If that is the reasoning, then in our judgment it is erroneous. Where new evidence results in a finding of fact and the fact so found can properly be described as a new or newly discovered fact, then the relevant statutory condition can be met even if the evidence and the resulting finding of fact relate to a matter that was in issue at trial. Mr Starmer’s example, where later evidence shows that the offence was committed by someone other than the original defendant, is a good one.

[51]In any event the evidence/fact distinction does not meet the real point in this case. The fact relied on here is the fact that at trial the prosecution was in possession of undisclosed material showing that the police had received information about Pollitt’s possession of a gun before they interviewed Murphy and Brannan. That is plainly a fact and not merely a matter of evidence: it was agreed at the 2002 appeal. It is capable in principle of being a new or newly discovered fact. That Pollitt’s possession of a gun was an issue at trial does not affect the point.

[52]We therefore reject the first of Mr Sales’s submissions on this issue. His second submission, however, has more substance to it. What he says is that the undisclosed material relied on by the Court of Appeal in 2002 was not “new or newly discovered” within the meaning of section 133 since it was in the possession of the applicants before the hearing of the first appeal in 1993; and it is from the conclusion of the first appeal, rather than from the date of the trial, that time runs for the purpose of determining whether a fact is “new or newly discovered”.

[53]It was accepted by the House of Lords in Mullen (see, in particular, paragraphs 9(1) and 35) that section 133(1) incorporates into domestic law article 14(6) of the International Covenant on Civil and Political Rights (“the ICCPR”). Article 14(6) is in these terms:

“When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

[54]It is submitted that “final decision” in article 14(6) refers to the point where ordinary remedies, including any appeal brought within the ordinary time limits, have been exhausted. In support of this, Mr Sales refers to a commentary on the materially identical terms of article 3 of Protocol 7 to the European Convention on Human Rights, a protocol adopted to bring the terms of the Convention into line with those of the ICCPR (see Mullen at paragraphs 9(4) and 39 et seq.). The United Kingdom has not signed or ratified the protocol, and it is plain from the speeches in Mullen that the protocol and related material must be viewed with some caution. Mr Sales submits that assistance is nevertheless to be had from an explanatory report prepared by the Steering Committee for Human Rights, which includes a commentary on article 3 in these terms (at paragraph 22):

“First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them’. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the states in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article … the article may apply.”

[55]It is submitted that section 133 uses domestic law equivalents to produce the same effect as article 14(6), so understood. By subsection (5) a conviction is to be taken as being “reversed” only if it is quashed on a conviction out of time or on a reference by the Criminal Cases Review Commission under the 1995 Act. A conviction is not reversed within the meaning of the section if it is quashed on an appeal brought within the ordinary time limit.

[56]It follows from the above, submits Mr Sales, that the reference to a “new or newly discovered fact” in section 133(1) must be to a fact that is new or newly discovered since the date of the final decision, i.e. since the conclusion of any appeal brought within the ordinary time-limit (or, if no appeal has been brought, since the expiry of the time limit for bringing one).

[57]The way Mr Sales puts this second submission does not reflect the actual reasoning in the decision letters, which focus in this respect on the information available to the defence at trial (and do not thereby provide a sufficient answer to a case based on the undisclosed material). In our judgment, however, the submission is well founded.

[58]We accept that section 133, read in the light of article 14(6) of the ICCPR, is concerned only with facts that emerge after the ordinary appellate process has been exhausted. The disclosure of a fact between trial and the determination of an appeal brought within the normal time limit cannot engage the operation of the section. In this case the undisclosed material was disclosed to Murphy and Brannan before the hearing of the first appeal in 1993. If it had resulted in the quashing of their convictions on that appeal, it could not have given rise to an entitlement to compensation under section 133; and although the same material played a part in the quashing of the convictions on the second appeal in 2002, it was still incapable of meeting the statutory conditions for compensation. Since it was already known at the time of the first appeal, at no time did it amount to a "new or newly discovered fact".

[59]That position is not affected by the way in which the undisclosed material was dealt with on the 1993 appeal, i.e. on the basis of a "realistic concession" that the ground of appeal relating to non-disclosure of that material must fall with the court's rejection of the evidence it had heard. Indeed, the position would remain the same even if the concession should not have been made or accepted. As Lord Steyn put it in Mullen at paragraph 45:

“If there is no new or newly discovered fact, but simply, for example, a recognition that an earlier dismissal of an appeal was wrong, the case falls outside article 14(6). That is so, however palpable the error in the first appellate decision may have been ….”

[60]Accordingly, although Mr Sales's second submission is not the way in which the decision letters were reasoned, the point made is in our judgment a good one and provides a sufficient basis for the refusal of statutory compensation. Even if this point stood alone, it would at the very least justify the refusal of relief in the exercise of the court's discretion. But it does not stand alone, as will become clear from our consideration of the next main issue. Issue (2):

“on the ground that”

[61]Another of the reasons given in the decision letters was that, even if the undisclosed material did amount to a new or newly discovered fact, the conviction was not quashed “on the ground that” that the new or newly discovered fact showed that there had been a miscarriage of justice. It was not the undisclosed material, but the combined effect of all the evidence considered by the Court of Appeal, which resulted in the convictions being quashed. (This issue is therefore concerned only with the words “on the ground that”, not with the separate question whether there has been shown to be a “miscarriage of justice”.)

[62]Mr Starmer takes issue with the Secretary of State’s reasoning. He submits that the undisclosed material was the principal reason for the decision to quash the convictions. The other evidence was of limited materiality, especially given that much of it could not have been called at the trial. That is sufficient to meet the statutory test. Alternatively, the test is satisfied if the new or newly disclosed fact was at least a contributory factor in the decision to quash, which it plainly was.

[63]Mr Sales submits that the words “on the ground that” in section 133(1), picking up the same wording in article 14(6) of the ICCPR, mean that the new or newly discovered fact must be the reason, in the sense of being the sole or principal reason, for the decision. It is the new or newly discovered fact, and not other matters, that must show beyond reasonable doubt that there has been a miscarriage of justice. The focus is on the effect of the particular matter that constitutes the new or newly discovered fact. This poses an insuperable obstacle for the claimants. It is clear from the judgment of the Court of Appeal in 2002 that the convictions were quashed on the basis of the totality of the evidence now available. The undisclosed material formed only a part and in no sense can the decision to quash convictions be said to have been taken “on the ground that” such material showed beyond reasonable doubt that there had been a miscarriage. The acid test of that is what happened in 1993, when the material was disclosed in advance of the appeal but the appeal was unsuccessful.

[64]We accept Mr Sales's submissions on this issue. In our judgment it is not sufficient that the new or newly discovered fact makes some contribution to the quashing of the conviction. It must be the principal, if not the only, reason for the quashing of the conviction. Only then could it be said that the new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice.

[65]The judgment of the Court of Appeal in 2002, far from treating the undisclosed material as the principal reason for quashing the convictions, treated it as just one of a number of factors leading to the conclusion that the convictions were unsafe. The first element it identified was the fresh evidence that the court had heard in 2002. The next was the undisclosed material, in relation to which the court stated that the non-disclosure of material items and the way in which the jury may have been unwittingly misled "must cause concern" (paragraph 86). The court then looked back at the fresh evidence given to the court in 1993, re-evaluating it in the light of the fresh evidence it had heard in 2002, including in particular the evidence concerning Brannan's instructions to his solicitors in 1991. Finally, it looked at all the evidence now available "as a whole" (paragraph 93) and based its overall conclusion on "the totality of the evidence now available" on the topic of Pollitt's possession of a gun (paragraph 95).

[66]We think it clear that the court did not regard any one matter as sufficient in itself to justify the quashing of the convictions or as the principal reason why they should be quashed. It is true that greater weight was attached to some parts of the fresh evidence than to others, as the court’s comments on individual witnesses show. But the court did not treat any one category of material (such as the evidence heard in 1993, or the evidence heard in 2002, or the undisclosed material) as determinative or as paramount. It based itself squarely and deliberately on totality. Mr Starmer's attempt to minimise the significance of everything except the undisclosed material does not fairly reflect the actual reasoning of the court.

[67]We therefore conclude on this issue that the reason given in the decision letters for refusing statutory compensation was sound. Issue (3):

“Wholly or partly attributable”

[68]A further reason given in the decision letters is that non-disclosure of the relevant matters was “wholly or partly attributable” to Murphy and Brannan. Mr Starmer submits that that reason is plainly bad.

[69]In seeking to counter that submission, Mr Sales point to the fact that Murphy and Brannan were themselves partly responsible for the outcome of the trial. That is clear from the matters referred to in paragraph 94 of the judgment of the Court of Appeal in 2002, including the fact that Brannan declined to give evidence and put forward a false defence, and that Murphy had, but did not use, information about the account given by Christina White.

[70]We accept that if one looks at whether the convictions were wholly or partly attributable to Murphy and Brannan, the answer must be that they were. But the statutory condition looks not at responsibility for the convictions but at responsibility for the non-disclosure of the new or newly discovered fact. That takes one back to the undisclosed material on which, as already discussed, the claimants base their case in these proceedings. The non-disclosure of that material cannot in our view be said to have been wholly or partly attributable to Murphy or Brannan. It was attributable entirely to the prosecution. Understandably, Mr Sales had no way of meeting that point.

[71]If, therefore, the claimants had succeeded on the first two issues, we would not regard the third issue as an obstacle to their claim. It should, however, be noted that the very factor that leads to their success on the third issue – the focus on the undisclosed material which was in the possession of the prosecution but unknown to the defence at the time of the trial – also leads inevitably, for the reasons we have given, to their failure on the first two issues.

Conclusion

[72]We find against the claimants both on issue (1) and on issue (2), though not on issue (3). Since the claimants have to meet all the statutory conditions in order to qualify for compensation under section 133, failure on any one issue is fatal to their case; and failure on two is doubly fatal.

[73]We leave open the question whether, even if the other statutory conditions were satisfied, it has been shown “beyond reasonable doubt” that there has been a “miscarriage of justice”.

[74]For the reasons we have given, both claims must be dismissed75. MR JUSTICE RICHARDS: We are handing down judgment in this case and, for the reasons given in that judgment, both claims are dismissed.

76. MR SALES: My Lord, I make an application for the defendant's costs.

77. MR JUSTICE RICHARDS: Thank you very much. Mr Sales, before you deal with that, I think the first point is that, as you know, there is an automatic reporting restriction on the case of LB by virtue of her age. The court received a letter from the London editor of the Manchester Evening News asking that the restriction be lifted, and setting out details of the publicity given to the criminal case, and indeed LB's own comments on the outcome of the criminal case. Is this a matter on which you want to make any submissions to the court?

78. MR SOUTHEY: I have in fact taken instructions and we are not opposing the application of the Manchester Evening News. I have express instructions that we will not oppose that.

79. MR JUSTICE RICHARDS: That seems a very sensible stance. In that case the reporting restriction will be lifted. Thank you very much. As to costs?

80. MR SOUTHEY: My Lord, I am going to be in great difficulty in opposing the application, other than to say, obviously, that it should be costs under section 11 of the Administration of Justice Act, which is the provision now protecting people who are in receipt of Legal Services Commission funding.

81. MR JUSTICE RICHARDS: Is it section 11 of the Administration of Justice Act? It is the normal order that is sought, but I can never remember.

82. MR SALES: I am informed on good authority that the normal order is that the claimant pay the defendant's costs, but that the determination of the claimant's liability to pay such costs be postponed pending further application.

83. MR JUSTICE RICHARDS: That is what the Associate would put in the order. We are very grateful. That is what you are seeking?

84. MR SOUTHEY: Yes.

85. MR JUSTICE RICHARDS: That is the qualification you are seeking?

86. MR SOUTHEY: The qualification I am seeking, yes. Having been in the Court of Appeal last week I know it is section 11, but I think that it has the same effect basically.

87. MR JUSTICE RICHARDS: Yes.

88. MR SOUTHEY: From my position, obviously, we do seek assessment for the purposes of the Legal Services Commission of our costs.

89. MR JUSTICE RICHARDS: Yes.

90. MR SOUTHEY: The other matter we seek is permission to appeal in relation to this matter. We do submit that this is a case which does raise important issues about the construction of the statutory scheme for compensation.

91. As your Lordships will be well aware, effectively this case was determined on two issues in the end. One was what was meant by new or new discovery, and in relation to that issue there was no case law, and similarly in relation to causation there was no case law. They are obviously matters of some importance, particularly in relation to the new or new discovery. Certainly, having talked to my instructing solicitors last night, their experience in the past was that it was always understood that new or new discovery effectively talked about the period after trial. So here is a matter of some importance to, I think, practitioners in this area, those who handle miscarriages of justice, the judgment in this matter.

92. MR JUSTICE RICHARDS: Thank you very much. We refuse permission on the basis that there is no real prospect of success and no other compelling reason why permission should be granted. Thank you both very much.