Nkiwane, R (on the application of) v The Secretary of State for Justice [2015] EWHC 2899 (Admin)

Case No CO/1344/2014[2015] EWHC 2899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/10/2015
Before
THE HONOURABLE MR JUSTICE SWEENEY
Between
THE QUEEN ON THE APPLICATION OFClaimantOTIS NKIWANEClaimantTHE SECRETARY OF STATE FOR JUSTICEDefendant
Gordon Bishop (instructed by Wells Burcombe Solicitors) for ClaimantMathew Gullick (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 17 February 2015
Judgment

Introduction

[1]With the permission of Cranston J, granted at an oral hearing on 10 July 2014, the Claimant seeks:(1) an order quashing the Defendant’s decision of 11 June 2012 to refuse him compensation for miscarriage of justice on the ground that his case did not pass the test set out by the Supreme Court in R (Adams) v Secretary of State for Justice; In re MacDermott; In re McCartney [2011] UKSC 18; [2012] 1 AC 48 (“Adams”); and/or(2) a declaration that he is entitled to compensation under s.133 of the Criminal Justice Act 1988 (“the 1988 Act”); and/or(3) an order requiring the Defendant to refer his application for compensation to the duly appointed assessor to assess the amount of compensation to which he is entitled; or(4) an order requiring the Defendant to reconsider the Claimant’s application on the basis of the law as it stood before the coming into force (in March 2014) of s.175 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).[2]The Defendant submits that the Claim should be dismissed, or alternatively that no relief should be granted, as:(1) There was no material error of law in the decision of 11 June 2012;(2) Even if there was such an error, in consequence of the coming into force of s.175 of the 2014 Act, the statutory provisions applicable to the decision have now changed and the result of any re-determination by the Defendant under those provisions would inevitably result in the application for compensation being refused.[3]Against that background, and in the light of the arguments advanced on each side, the issues that I am invited to determine boil down to:(1) Whether the Defendant’s decision to refuse the Claimant’s application was unlawful on public law grounds because it was: (i) irrational and/or unreasonable; and/or (ii) based on a false understanding of the facts; and/or (iii) based on a misunderstanding of the law. (“The first issue”)(2) The correct interpretation of s.175(2) of the 2014 Act, and in particular whether:` (i) It means that the test in subsection (1ZA) can be applied by the Defendant to cases which were determined by him prior to the passing of the 2014 Act, but in respect of which applications for judicial review had not by then been decided; or (ii) It is restricted to cases where the Defendant had not made a decision on an application at the time that the 2014 Act came into force. (“The second issue”)

Background

[4]On 22 July 2004, at the conclusion of a trial before His Honour Judge Breen and a jury in the Crown Court at Luton, the Claimant (then aged 26) was convicted, by a majority of 11:1, of the rape of a woman (to whom I shall refer as “Z”) at a party at a house in Luton in the early hours of Boxing Day 2003. Transcripts of Z’s evidence and of the summing up, together with the later Statement of Reasons by the Criminal Cases Review Commission (“CCRC”) show, amongst other things, that:(1) Everyone had been drinking to a greater or lesser extent. The issue in the case was consent. The jury were directed that, before they could convict, they had to be sure that Z’s account was both truthful and accurate in all essentials.(2) Z’s account was that she had been asleep in a bedroom at the house, along with her friend Jackie, when she had woken to find the Claimant having sex with her; that she had immediately pushed him off when he refused to stop, accusing him of rape; and that thereafter, when he was standing, she had punched him on the nose – after which, despite advice not to, she had called the police.(3) The Claimant’s account was that he had gone to the bedroom twice. On the first occasion Z had been awake, and Jackie, Nicky (the host) and two other women Sylvia Zungu (“Sylvia”) and Runyararo Ziyenge (“Runy”) had also been present. In the presence of the others Z, who was lying on the bed, had asked him to kiss her bottom and then to perform oral sex on her, each of which he had done in turn until she had asked him to stop – saying “You’re not my boyfriend”. On the second visit, some minutes later, and when only Jackie (who was asleep) was also present, he had again performed consensual oral sex on Z and they had then had consensual intercourse until she had said “Stop, you’re not my boyfriend”, which he did – after which they had argued, Z had said “I’ll call the police and say you raped me”, and had struck him.(4) When cross-examined Z said that she had no recollection of the Claimant’s first visit to the room, but did recall that Nicky and “Gugu” (Sylvia) had come in and left before the alleged offence. Z said that she did not engage, or had no recollection of engaging, in oral sex with the Claimant whilst Nicky and others had been present. She was not cross-examined about a witness statement in which she had mentioned that the Claimant had entered the room whilst both Jackie and Sylvia were also there.(5) Jackie referred to seeing the Claimant, on the first occasion, fumbling Z’s breasts whilst Z was sitting on the bed – which Z had only gently admonished. On the second occasion, she had woken to hear Z angrily asking what the Claimant was doing to her, saying that he was raping her, and had then seen Z punch the Claimant on the nose.(6) Nicky was called by the defence (albeit that her account of the detail differed from that of the Claimant) and said that she had been present with Jackie, Sylvia and Runy when Z had asked the Claimant to kiss her bottom and to perform oral sex on her and that he had done both - whereupon she (Nicky), Sylvia and Runy had left.(7) Sylvia and Runy were not called as witnesses. Neither side had traced them by the time of the trial.(8) The judge commented that the jury might think that if what the Claimant and Nicky had said in evidence about what had happened whilst Nicky was present was true, then Z had lied about an important issue, or at least given distorted evidence about an important issue. On the other hand, if the Claimant’s account was true, they might think that Z had behaved very oddly, even for someone heavily under the influence of alcohol.[5]The Claimant was sentenced to 5 years’ imprisonment – of which he served 3 years 42 days. He was released on 17 August 2007.[6]On 11 November 2005 the Claimant’s application, in person, for permission to appeal, which was essentially focused upon alleged failures in the trial process, was refused by the Court of Appeal (Criminal Division) (“CACD”). At [11] & [12] of its judgment the court said:
“11. …….This case was about whether the jury believed the complainant or whether the evidence of the applicant and the supporting witness [i.e. Nicky] at least cast doubt on it. 12. This was a strong case. It was unsurprising, in our judgement, that the jury had difficult in accepting the proposition that [Z] would have invited a man she knew as a mere acquaintance to kiss her bare bottom and perform oral sex in front of two or three other women and then immediately thereafter attack him physically and accuse him of rape. The jury had to assess this evidence. They did so. We do not regard the applicant’s conviction as even arguably unsafe.”
[7]On 19 December 2005 the Claimant applied to the CCRC to refer his case back to the CACD. The CCRC took statements from Sylvia and Runy. Each stated that, a few minutes before the alleged rape had taken place, they had witnessed consensual oral sex taking place between the Claimant and Z – although neither was present when the offence itself was said to have occurred. In consequence, and in view of further evidence that had also come to light (see [10(3)] below), the CCRC referred the case back to the CACD on 25 August 2010.[8]The appeal was heard on 10 February 2011. In her Skeleton Argument, Counsel for the Crown, Miss Cripps, referred to the summary of the evidence at trial at [1]-[25] of the CCRC’s Statement of Reasons, and indicated, amongst other things, that:(1) Against the background that there had been acknowledged errors by the police in tracing Sylvia, the application to adduce the evidence in the statements of Sylvia and Runy was not opposed. In their CCRC statements both Sylvia and Runy had supported the Claimant’s account as to what had happened in their presence. Although it was conceded that, even if such an earlier event had taken place, there remained the possibility that Z could have been raped by the Claimant, the determination of that would rest on the view to be taken of Z’s credibility.(2) The case prior to trial had been finely balanced, and had the statements of Sylvia and Runy been available, the case against the Claimant would not have survived the application of the Code for Crown Prosecutors Full Code Test – namely “is there arealistic prospect of conviction?”[9]In the result, the statements of Sylvia and Runy were received in evidence by the CACD without the witnesses being called, the appeal was allowed and the conviction was quashed. The judgment of the Court (see [2011] EWCA Crim 347) was given by Wyn Williams J. At [19]-[22] he said:
“19. It seems to us that the evidence of Sylvia and Runy is capable of belief. Second, their evidence would have been admissible in the Crown Court trial. Third, there is no dispute but that such evidence might afford a ground for allowing the appeal. 20. The appellant also submits that there is a reasonable explanation for the failure to adduce the evidence at the trial. We accept that submission. The Crown failed to locate either witness. The appellant himself was in prison for a wholly unrelated matter in the lead up to his trial and all that was available to him was one contact number for one of the witnesses. 21. It seems to us that all the criteria for receiving the evidence of Runy and Sylvia are satisfied and that, accordingly, this court should receive it. There is now, therefore, a very substantial body of credible evidence which suggests that shortly before the alleged rape occurred the appellant and the complainant engaged in consensual oral sex. That being so, we are left in considerable doubt, at the very least, about the credibility of the complainant’s account. As we have said, this case depended in very large measure on the credibility of the complainant. 22. Miss Cripps was frank enough to accept that had these statements been available before trial, a prosecution would not have been brought. In the light of the statements, and in the light of the concession made by the prosecution, we have no doubt that the conviction for rape is unsafe. Accordingly, we propose to allow the appeal and quash the conviction.”
[10]On 21 December 2011 the Claimant applied to the Defendant for compensation under s.133 of the Criminal Justice Act 1988. He relied, in particular, upon:(1) The test identified, then relatively recently, by the Supreme Court in Adams (above).(2) The witness statements that the CCRC had obtained from Sylvia and Runy.(3) The further evidence uncovered by the CCRC – in particular that: (i) In August 2005 (i.e. some 20 months after the events at the party) Z had made a claim of attempted rape against her then boyfriend, who had been charged with sexual assault and battery - which the Crown Prosecution Service (“CPS”) had discontinued on the basis that there were inconsistencies between Z’s first account and subsequent witness statement, and the support provided by independent witnesses was insufficient to tip the balance in favour of continuing. (ii) There had been significant errors and omissions in the conduct of the original police investigation into Z’s complaint against the Claimant, and in the disclosure exercise in the case.(4) The Crown’s considered acceptance at the ultimate appeal, as reflected in the judgment of the court that, had the fresh evidence been available at the investigative stage, the Claimant would not have been charged.[11]By a letter dated 11 June 2012 the Defendant refused the application. Having set out aspects of s.133; indicated that the Defendant did not consider that the conviction had been quashed on the ground that a new or newly discovered fact showed beyond reasonable doubt that there had been a miscarriage of justice; and referred to the “demanding” test in Adams, the letter continued:
“The Justice Secretary has carefully considered your client’s case, in particular the judgment of the Court of Appeal when it quashed the conviction. He has concluded that this test has not been met. There is no indication in the Court’s judgment that a new or newly discovered fact demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court couldconvict. The Court of Appeal only concluded at paragraph 21 of its judgment that ‘we are left in considerable doubt, at the very least, about the credibility of the complainant’s account’. The Court did not state that your client could not possibly have been convicted. We note that the defence case, as set out in paragraph 13 in the Criminal Cases Review Commission’s Statement of Reasons is that consensual oral sex took place between Mr Nkiwane and the complainant which was witnessed by others present. Some time later Mr Nkiwane returned to the room and began consensual penetrative sex with the complainant. The two witnesses confirmed in their witness statements that they witnessed the consensual oral sex between your client and the complainant, but then left the room; therefore they were not present at the time of the alleged offence. Furthermore, the complainant has not retracted her statement that she was raped. Whilst there was new information that undermined the complainant’s evidence to some extent, there remained sufficient evidence upon which your client could have been found guilty. Additionally the CPS test for deciding whether or not to pursue a prosecution is not the same as the test the Justice Secretary has to apply when considering eligibility for compensation. For these reasons, your client’s case does not meet the statutory test and the Justice Secretary is not therefore prepared to authorise an award of compensation…”
[12]On 22 August 2012 the Claimant’s solicitors sent a pre-action protocol letter to the Defendant. Thereafter it was agreed between the parties that the Claimant’s decision whether or not to apply for judicial review should await the final outcome of five lead cases, then awaiting hearing before the Divisional Court, as to the application of the Adams test. Judgment was given in those cases on 25 January 2013 – see R (Ali & Others) v Secretary of State for Justice [2013] EWHC 72 (Admin); [2013] 1 WLR 3536 (“Ali”). The court found in favour of one Claimant (Lawless), but refused the other applications. On 27 February 2014 the Court of Appeal dismissed appeals by three of the unsuccessful applicants – see [2014] EWCA Civ 194; [2014] 1 WLR 3202.[13]On 13 March 2014 s.175 of the 2014 Act came into force. It amended s.133 of the 1988 Act to provide that, for the purposes of that section, there had been a miscarriage of justice if and only if the new or newly discovered fact showed beyond reasonable doubt that the person did not commit the offence.[14]The Claimant issued his application for judicial review on 26 March 2014. Permission was refused, on the papers, by Irwin J. As indicated above, Cranston J granted permission at an oral hearing on 10 July 2014.[15]Since the hearing before me on 17 February 2015, the Defendant has drawn attention to the recent decision of the Divisional Court in The Queen (on the application of Robert Clark and Christopher Drury) v The Secretary of State for Justice [2015] EWHC 2383 (“Clark & Drury”).

Section 133 of the 1988 Act

[16]Section 133 was enacted in order for the United Kingdom to put its obligations under Article 14.6 of the International Covenant on Civil and Political Rights 1966 on a statutory footing. As amended by s.61 of the Criminal

Justice and Immigration Act 2008 it provides, in so far as relevant, as follows:

“(1) Subject to subsection (2) below, 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 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 before the end of the period of two years beginning with the date on which the conviction of the person concerned is reversed or he is pardoned….. (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State. (4A) Section 133A applies in relation to the assessment of the amount of compensation.

(b) on a reference- (i) under the Criminal Appeal Act 1995……”

[17]From 1988 until January 2008 it was Government policy “to accept that a later reversal of a conviction on the ground of ‘a new or newly discovered fact’ is sufficient, of itself, to establish beyond reasonable doubt that there has been a miscarriage of justice” – see e.g. [14] of “Practice in Administering the statutory and ex gratia schemes” published by the Home Office in October 2006. However, following the decision of the House of Lords in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1, and a number of subsequent decisions in the Court of Appeal and the Divisional Court, by which time responsibility for the administration of the statutory scheme had passed to the Secretary of State for Justice, there was a change of policy in England and Wales, namely that “…..we will only take there to have been a miscarriage of justice if the appellant has been acknowledged to be clearly innocent, or if the new fact/evidence showed, beyond reasonable doubt that the applicant ‘should not have been convicted’” – see e.g. [19] of the January 2008 version of “Practice in Administering the statutory scheme”.[18]In Adams (above) in 2011 the Supreme Court considered the meaning of the phrase “miscarriage of justice” in s.133(1). In short, the Court decided by a majority (see Lord Phillips PSC at [52]-[55]; Lord Hope DPSC at [96]-[102]; Baroness Hale JSC at [114]-[115]; Lord Kerr JSC at [171]-[179]; and Lord Clarke JSC at [217]), albeit for differing reasons, that:(1) The true meaning of the phrase included both: (i) Cases where conclusive proof of innocence was shown (Category 1); and (ii) Cases where a new or newly discovered fact showed that the evidence against the defendant had been so undermined that no conviction could possibly be based on it (Category 2).(2) The true meaning of the phrase did not include circumstances where new evidence rendered a conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted the defendant (Category 3), or where something had gone seriously wrong with the investigation of the offence or the conduct of the trial, resulting in the conviction of a person who should not have been convicted.(3) The test under s.133 was thus different from the test by which a court would quash a conviction as being unsafe; and, although the Secretary of State would have regard to the terms of the judgment quashing the conviction, it was not determinative; and (provided that his decision did not conflict with the judgment) it was for him to form his own conclusions as to whether a new or newly discovered fact had led to the quashing of the conviction and, if so, whether that fact showed beyond reasonable doubt that a miscarriage of justice had occurred and compensation was payable – see, in particular, Lord Phillips PSC at [36] and Lord Kerr JSC at [168] – [170].(4) The case against Mr Adams was essentially based on a single witness supported by two police officers. There had been a failure at trial by his legal representatives to deploy three pieces of undermining material that had been disclosed or were otherwise available. In quashing his conviction, the CACD had stated expressly that it was not to be taken as finding that if the failings had not occurred he would inevitably have been acquitted. Hence his appeal against the refusal to award him compensation was dismissed as, although the previously undeployed material constituted newly discovered facts for the purposes of s.133, he had failed to establish that the evidence against him had been so undermined that no conviction could possibly be based on it.(5) The appeals of Mr MacDermott and Mr McCartney (in each of whose case the only evidence of guilt had been alleged admissions in interviews by police officers whose evidence, new evidence had shown, had been so undermined that no conviction could possibly be based on it) were allowed. See the judgment of Lord Kerr who concluded, at [119]-[170], that not only was it inevitable that the appellants would have been acquitted, but also that they ought not to have been required to stand trial, as any objective assessment of all the circumstances was bound to result in the conclusion that there was no realistic prospect of conviction.[19]In Ali (above), in January 2013, the Divisional Court formulated the Category 2 “miscarriage of justice” test differently, holding that the court should ask itself:
“Whether the claimant had established beyond reasonable doubt that no reasonable jury (or magistrates) properly directed as to the law could convict on the basis of the evidence now to be considered.”
[20]In February 2014, the Court of Appeal in Ali (above) rejected the Divisional Court’s re-formulation of Category 2 because, inter alia, it was very close to a test that had been expressly rejected by the Supreme Court; it was apt to encourage applications that amounted to submissions of no case to answer, which the Supreme Court had wished to avoid; it was capable of undermining the important distinction between the role of the Secretary of State when determining an application for compensation and the role of the courts when quashing a conviction; and it was apt to lead to unmeritorious applications for judicial review.[21]At [27] & [28] of the judgment, the Court said:
“27. Putting it at its simplest, a new or newly discovered fact may lead to a conviction being quashed by the CACD because the evidence pertaining to it is capable of belief, and it undermines the safety of conviction. The test as to whether a miscarriage of justice has occurred within the meaning of section 133 however is not the same. Nor is it the same as that which a judge would apply when deciding whether there is a case to answer at the close of the prosecution case, assuming hypothetically that the new or newly discovered fact was part of the evidence to be considered. The test is that decided on in the Adams case. In making his determination the Secretary of State is required to make a decision by applying the statutory test in accordance with the guidance in the Adams case to the facts of the particular case, which can include events which post-date the quashing of the conviction in the event that further facts of relevance to the application of the statutory test arise. He may come to his own view, having regard to the terms of the CACD’s judgment quashing the conviction, and provided the decision does not conflict with that judgment. The decision is then amenable to judicial review on conventional grounds of challenge, not merely because the court would have reached a different view. Save in exceptional circumstances, it should not be necessary for the court to engage in a detailed review of the facts. 28. It may be that in an extreme case, there is only one rationally correct conclusion as to the result of the application of the statutory test and that the cases of Mr MacDermott and Mr McCartney analysed by Lord Kerr JSC in the Adams case fall into this category. But the existence of such exceptional cases is not determinative of the nature of the court’s role in all cases as the Divisional Court observed when rejecting the argument that Lord Kerr JSC’s analysis supported the substitutionary approach. It also does not mean that the Secretary of State’s decision is amenable to challenge by judicial review on anything other than ordinary public law principles”
[22]At [55] & [56] of the judgment the Court went on to say this about the case of one of the Appellants:
“55. In relation to Mr Tunbridge, Mr Owen relies principally on two matters. First, the statement of the witness (Miss G) who claimed the complainant at his trial for indecent assault had admitted to her that she lied to secure his conviction; and secondly, on matters relating to the credibility of the complainant, which arose after the conviction. This evidence, submits Mr Owen, ‘holes the prosecution case below the water line’. We are unable to accept that it did so, even if the matter is looked at in that way, rather than through the correct prism of Lord Phillips PSC’s test. When Miss G’s allegation was put to the complainant she strongly denied that she had made any such admission, and said that Miss G was the former girlfriend of Mr Tunbridge, and therefore effectively ‘under his thumb’: in other words, she had a motive to lie for his benefit. That Miss G’s statement was the main plank for quashing his conviction meant only that it was capable of belief; not that this was a category 2 case, an issue to which a different test applies. 56. As for the matters of credibility post-dating the conviction, although each assessment is fact-sensitive, we think it would be exceedingly rare for matters going to the credit of a witness who gave evidence at trial, to be material to an assessment by the Secretary of State of the merits of a claim under section 133. In the event, at best, the matters highlighted by Mr Owen would have been for a jury to resolve in the light of the other evidence in the case, including, the forensic evidence which was capable of supporting the prosecution’s case as to precisely what had occurred. They would have provided no grounds for the Divisional Court to interfere with the assessment of the Secretary of State or for this court to interfere with the decision below.”
[23]In Clark & Drury (above) the Divisional Court (Sharp LJ & Blake J) was concerned with a case in which, following a Reference by the CCRC, convictions had been quashed, a retrial had been ordered, and (during the course of pre-retrial abuse of process argument) the prosecution had offered no evidence when it had become clear that its principal witness had turned hostile – but the Secretary of State had decided that the applicants were not entitled to compensation under s.133 of the 1988 Act.[24]Having analysed the Secretary of State’s decision and the meaning of “miscarriage of justice “ in s.133 of the 1988 Act prior to its amendment by the 2014 Act, Sharp LJ (with whom Blake J agreed) continued, at [56] – [59], [63]- [66] and [69] of her judgment, as follows:
“56. The question is whether the Secretary of State’s decision to refuse the claimants’ claim for compensation was unlawful on public law grounds. In my view, it is clear from the material set out above, that it was not. The Secretary of State’s decision letter set out the correct legal principles, as propounded in Adams and Ali, I do not consider his decision was vitiated by any public law error. 57. The claimants’ case in substance is put in two ways: either that the decision of the prosecution not to proceed with the prosecution by offering no evidence, means that the Secretary of State is bound to conclude that the Category 2 test as formulated in Adams is satisfied, which is how the matter was put in the amended application for compensation; or, as argued before us, that if the judge would have concluded it was an abuse of process for the case to continue, then it follows that an award should be made. 58. In my view, both of those formulations involve an erroneous articulation of the relevant legal test. The test is not whether there is a realistic prospect of a conviction; nor is it the test that would be applied on a submission of no case, or to stay the claim as an abuse. As Mr Strachan QC for the Secretary of State submits, the difference is not a matter of semantics, but one of principle and importance, which fundamentally affects the way the Secretary of State should apply section 133 of the CJA 1988. Although the difference (between the Category 2 test and the prosecutorial decision not to proceed) is recognised in the claimants’ skeleton argument, I think Mr Strachan is right to say that the claimants’ real position is there is no practical distinction between them. 59. I also think that his claim demonstrably seeks to draw the Secretary of State into the very role that the decisions in Adams and Ali have made clear he is not obliged to undertake in deciding cases of this kind, namely that of the trial judge. ……………………………………… 63. The prosecution test as to whether to proceed or not, is not coterminous with that which the Secretary of State has to apply. In other words, the fact that the prosecution decided not to proceed with Fleckney as a hostile witness did not determine the section 133 question. As at that date, Fleckney could still have been called to give evidence as a hostile witness; and in my view, the Secretary of State was entitled to conclude that the assessment of her evidence, in the context of the other evidence, including the confessions made by the claimants, would have been a matter for the jury to consider at a retrial. 64. The CACD did not, as it said, rely on the claimants’ confessions for the purpose of its retrial consideration. Nor however did it say that the confessions were inadmissible. Instead, at para 65, the CACD indicated that the question of admissibility of those confessions would be a matter for the retrial. The prosecution’s position as to those confessions was clear: see para 43 above viz. there was nothing inherent in them that rendered them inadmissible; there were features which supported their truthfulness and it intended to adduce the confessions in evidence at any retrial. 65. The Secretary of State was obviously aware of the background and the submissions of the claimants, and his decision records that these were taken into account. His reasoning was shortly expressed; but accurately set out the key points relied on. It was neither unlawful or irrational for the Secretary of State to make his decision on the basis of the continued existence of evidence on the charges which justified the retrial, and the confessions which might have been admitted into evidence; and to have reached the view in consequence, that the statutory test for granting compensation for a miscarriage of justice was not met. 66. In reaching that conclusion and for the purposes of his determination of the section 133 question, the Secretary of State was not required to engage in the sort of detailed analysis of the evidence which Mr Jones QC submits he should have done: see Adams at para 52, and Ali at paras 25 and 27. The arguments now advanced by the claimants might ultimately have persuaded a trial judge not to allow the case to go to the jury, or at the pre-trial hearing to stay the proceedings as an abuse, but that is nothing to the point. …………………………………………… 69. Despite the undoubted effort and energy that has been expended in mounting these applications it is inevitable that any claims for compensation will fail. It is common ground that if the decisions made in March 2014 were to be quashed they would fall to be re-determined by the Secretary of State under section 133 as amended by the 2014 Act. It is not contended by the claimants that were such a re-determination to take place, their claims would satisfy the test of a “miscarriage of justice” in section 133 (IZA) of the 1988 Act. To this extent, there is no purpose in granting the relief asked for; and in my view, this is a further independent reason for refusing to do so”

Section 175 of the 2014 Act

[25]As indicated above, s.175 came into force on 13 March 2014. The Explanatory Notes indicate that its purpose was to reverse the effect of both Adams (above) and the decision of the Divisional Court in Ali (above). It provides that:
“(1) In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice) after subsection (1) there is inserted- ‘(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales……..if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and the references in the rest of this Part to a miscarriage of justice are to be construed accordingly)’ (2) Subsection (1ZA) of section 133 of the Criminal Justice Act 1988 has effect in relation to- (a) any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and (b) any application made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under subsection (3) of that section.” ‘(1ZA) For the purposes of subsection (1), there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales……..if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence (and the references in the rest of this Part to a miscarriage of justice are to be construed accordingly)’ (a) any application for compensation made under subsection (2) of that section on or after the day on which this section comes into force, and (b) any application made before that day in relation to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State under subsection (3) of that section.”

The first issue – the arguments

[26]There was no dispute that the content of the witness statements of Sylvia and Runy amounted to new, or newly discovered, facts. Equally, it was not suggested that the Claimant’s case came within Category 1 of the Adams test. Therefore the arguments in relation to the first issue concentrated on whether the Defendant’s decision that the Claimant’s case was not within Category 2 of the Adams test was vitiated by any public law error.[27]On behalf of the Claimant Mr Bishop argued, in summary, that:(1) There could only be one lawful outcome of the Claimant’s application for compensation, because there could be no rational decision other than a conclusion that it came within Category 2 of the Adams test.(2) At the appeal in the CACD counsel for the Crown had made it clear that, if the evidence of Sylvia & Runy had been known about from the outset, the prosecution would not have been brought (because the Crown took the view that the evidence would not have passed the Code for Crown Prosecutors Full Code Test), and that therefore it necessarily followed that, had the new evidence been available, the Claimant could not possibly have been convicted. The fact that the test applied by the Crown was different to the test in s.133 of the 1988 Act did not matter – it was irrelevant.(3) The Crown’s approach in the CACD was obviously correct - given that it had never been suggested by the CPS, the CCRC or the CACD that there was any doubt as to the reliability of the accounts of Sylvia and Runy, and their evidence (when combined with that of Nicky) destroyed Z’s credibility, upon which the prosecution case depended, in relation to a fundamental aspect of her account.(4) What counsel for the Crown had said had been implicitly accepted by the CACD and, wrongly and unlawfully, the Defendant had totally failed to have regard both to what was actually said and to its consequences; had largely and unreasonably relied on the fact that the CACD did not state that that the Claimant could not possibly have been convicted (which was unsurprising given that that was not, as it made clear, the test that the court was considering); had failed to take account of the true role of the CACD (as described in Adams); had, in reality, ignored the Category 2 test required by Adams and applied a test akin to the test of innocence favoured by the minority; had proceeded upon the basis that if there was any evidence left against the Claimant at all the Defendant was entitled to refuse his application; had ignored the trial judge’s directions in relation to credibility: and in stating that Z’s evidence had been undermined “to some extent” had completely misstated the position.(5) The Claimant’s case (citing, in particular, Lord Phillips PSC at [65], Lord Hope DPSC at [102] & [113] and Lord Kerr JSC at [165]-[170] in Adams and [42] & [44] of the judgment of the Divisional Court in Ali) was in the same category as that of Mr MacDermott and Mr McCartney in Adams – who not only should not have been convicted, but should not have been prosecuted in the first place. The judgment of Lord Dyson MR in the Court of Appeal in Adams at [19] was also relied upon.(6) In the alternative, if the new evidence had become available at the trial, and even assuming that the prosecution had chosen to continue despite their inability to challenge it, either the judge would have had to direct the jury to acquit the Claimant, or the jury would inevitably have acquitted - because of the way in which the case was summed up and the fact that, faced with the new evidence, no reasonable jury could be sure that Z was a truthful witness.(7) Whilst there could have been a private prosecution, it would inevitably have been taken over by the CPS and discontinued, and if not discontinued would (as above) inevitably have failed.(8) In all those circumstances the Defendant’s decision was irrational and/or wholly unreasonable. He had also applied the wrong test or, alternatively, the right test to incorrect facts.[28]In a further short written submission, Mr Bishop argued that the decision of the Divisional Court in Clark & Drury (above) was of no assistance to the Court. The facts, he argued, were totally different – in particular the CACD had opined that the evidence against the appellants remained strong.[29]On behalf of the Defendant Mr Gullick argued, in summary, that:(1) It did matter that the Code for Crown Prosecutors Full Code Test and Category 2 of the Adams test were different – just as it mattered that the Adams test was different to the test applied on a submission of no case in the Crown Court (as underlined by the Court of Appeal in Ali at [27]), and to the test applied by the CACD.(2) In applying the Full Code Test the Crown was deciding whether it was more likely than not that a jury, properly directed in law, would convict. That, self-evidently, was very different from the Adams Category 2 test – which is concerned with whether or not a conviction could possibly be based on the evidence against the Claimant as it stands, taking into account the new material. Indeed, if the question under s.133 was akin to the Full Code Test, then compensation would be payable in Adams Category 3 cases as well – an outcome that the Supreme Court had expressly rejected.(3) Taking a hypothetical case in which the CPS decided that there was only a 49 per cent chance of conviction and thus, applying the Full Code Test, chose not to prosecute, the Claimant’s approach would nevertheless mean that the Defendant would have to decide that the evidence against the relevant individual had been so undermined that no conviction could possibly be based on it - which could not be right.(4) It equally followed, on the Claimant’s approach, that the Crown’s decision, right or wrong, on what its approach would have been if the new evidence had been available at the time, was determinative of the process under s.133 of the 1988 Act, whereas that decision was properly one for the Defendant alone to make, applying the Adams approach, as set out by the Court of Appeal in Ali, which would be deprived of all meaning if the Claimant was right.(5) In addition, in 2004, a decision not to prosecute by the CPS would not have precluded a private prosecution being brought and pursued to a conclusion – given that, at that time, the approach to taking over and discontinuing private prosecutions was narrower than it is now (and even under the current policy there remained a residue of cases that continued to a conclusion – see R (Gujra) v CPS [2012] UKSC 52, [2013] 1 AC 484 at [1], [24]-[25] & [33]).(6) In any event, the Claimant’s reliance on aspects of the judgment in Adams in relation to Mr McDermott and Mr McCartney were misconceived. Lord Hope DPSC at [102] and Lord Kerr JSC at [178] and [182] had both made clear, whether explicitly or implicitly, that the test as formulated by Lord Phillips PSC did not require the Defendant to focus on whether the applicant for compensation “should never have been prosecuted” – in which regard it was important to bear in mind [27] and [28] of the judgment of the Court of Appeal in Ali (above).(7) In addition, and by reference in particular to [58] & [63] of the judgment of Sharp LJ, the decision of the Divisional Court in Clark and Drury supported the Defendant’s case and should be followed.(8) It was for the Secretary of State to apply the Adams test. He had done so correctly. It was clear from the judgment of the Supreme Court in Adams that he was not required to take the judgment of the CACD as his only source of evidence. Reliance on the example given in [19] of the judgment of Lord Dyson in the Court of Appeal was misconceived, given, in particular [51] & [55] of the judgment of Lord Phillips PSC. To the extent that any bad faith had been implied in the arguments advanced on the Claimant’s behalf, there had hitherto been no such claim, and it showed the weakness of the Claimant’s position. There was no material error of law in the decision of 11 June 2012, and the claim should be dismissed.

The first issue – the merits

[30]In my view it is clear, against the background set out above, that the Defendant’s decision to refuse the Claimant’s claim for compensation was not vitiated by any public law error, and thus was not unlawful on public law grounds. On the contrary, the decision (as summarised in the decision letter) was based on a correct understanding of both the law and the facts, and was neither irrational nor unreasonable.[31]There was, in my view, clear force in the arguments advanced on behalf of the Defendant, and it must be underlined that:(1) As the Court of Appeal in Ali made clear at [28] of its judgment, the cases of Mr MacDermott and Mr McCartney in Adams were extreme cases in which (the Supreme Court concluded that) there was only one rationally correct conclusion (in favour of the two appellants) as to the result of the application of the statutory test. That was not what the CACD concluded in this case, nor have I – rather the reverse.(2) The test that the Defendant was required to, and did, apply is (as the authorities, between them, make clear) significantly different to the Code for Crown Prosecutors Full Code Test; to the approach to a submission of no case (as to which see R v Galbraith 73 Cr.App.R. 124); and to the ultimate issue on an appeal against conviction in the CACD (as to which see s.2(1) of the Criminal Appeal Act 1968 and, for example, R v Pendleton [2002] 1 W.L.R. 72, HL).(3) Counsel for the Crown in the CACD recognised in terms, in her Skeleton Argument, that even if the earlier consensual oral sex had taken place, there remained the possibility that the Claimant could have raped Z.(4) In expressing the view that if the evidence of Sylvia and Runy had been available for review the case against the Claimant would not have survived the Full Code Test, she was simply indicating that the Crown had decided (rightly or wrongly) on credibility grounds that it would have decided that it was more likely than not that a jury, properly directed, would acquit.(5) It is elementary that that decision did not, in law, bind the CACD. Nor, in fact, did the CACD adopt the decision as being correct. All that the CACD decided was that the statutory criteria for the admission of the fresh evidence of Sylvia and Runy were met and that that evidence went to Z’s credit, which had been in issue in the case. The CACD then simply referred to the Crown’s decision as part of the background to its ultimate conclusion that the Claimant’s conviction was unsafe.(6) It would be strange indeed if a decision (right or wrong) by the Crown that if certain evidence had been available at the time it would have decided, on credibility grounds, that it was more likely than not that a jury, properly directed, would acquit, effectively bound the Defendant to conclude that, based on the evidence as it stands, there was no possibility of a conviction – when it was nevertheless recognised, in terms, on behalf of the Crown that there was still a possibility of a conviction; when the Crown’s decision did not, in law, bind the CACD; and when it was not in fact adopted by the CACD. It would also be contrary to the approach of the Court of Appeal in Ali (including the approach to cases concerned with the issue of witness credibility) and to that of the Divisional Court in Clark & Drury (which is a case of relevance to the instant case).(7) As was correctly pointed out in the decision letter Sylvia and Runy were not present when the alleged offence took place; Z had not retracted her account; the CACD did not decide that the new evidence had demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court could convict; and nor did the CACD state that the Claimant could not possibly have been convicted.(8) The decision by the CPS not to pursue Z’s different complaint made some 20 months later made no significant difference to her credibility, and nor did the police failings. Equally, prior consensual oral sex had a double-edged element to it, and the circumstances of the cessation of intercourse, of Z’s complaint and of her punching the Claimant, and of anomalies arising from the Claimant’s account (to which the trial judge made reference in summing up) were all matters that supported the possibility of a conviction. Contrary to the Claimant’s argument, and applying Galbraith (above), it was certainly not a case in which it would have been appropriate for a judge to intervene at the conclusion of either the prosecution case or the evidence as a whole.[32]In my view it is clear, against that background, that the Defendant examined the Claimant’s claim for compensation through the correct prism of Lord Phillips PSC’s Category 2 test, and that there is no merit in the arguments advanced in support of the assertion that he fell into public law error.

The second issue – the arguments

[33]In view of my clear conclusion that the Defendant’s decision was not vitiated by any public law error, this issue (i.e. the true construction, in particular, of s.175(2)(b) of the 2014 Act) does not arise for determination as such. I propose, nevertheless, to shortly summarise the arguments advanced – against the background that there was no dispute that reconsideration by the Defendant under the new provisions would inevitably result in the Claimant’s application for compensation being refused.[34]On behalf of the Claimant, Mr Bishop argued, in summary, that:(1) “Finally determined………by the Secretary of State” in s.175(2)(b) was a reference to the process prior to any application for judicial review, and in this case the letter of 11 June 2012 was the Defendant’s final determination – citing, by way of example, Lord Diplock’s use of the term “final decision” on Hoffman La-Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, at 369.(2) There was a well-established presumption against statutes bearing the sort of retrospective effect argued for by the Defendant unless they made clear that that was the intention of the legislation – citing, inter alia, Wilson v Secretary of State for Trade and Industry [2004] 1 AC 816 and R (Caitlin Reilly (No.2) and Daniel Hewstone) v The Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin), [2015] QB 573 (“Reilly”).(3) S.175 failed to make it clear that it was intended to apply to cases in which there had been a determination followed by a successful application for judicial review – whereas it could easily have done so. Nor was it appropriate for the Defendant to seek to rely upon the Explanatory Notes to the 2014 Act and an Impact Assessment.(4) The interpretation for which the Defendant contended would be grossly unjust and unfair – particularly to those whose applications had been stayed pending the various decisions in Adams and Ali.(5) Further, that interpretation would not be compatible with Article 6 of the ECHR as constituting retrospective legislation which affected the judicial determination of a dispute to which the State was a party – which is not permissible save on compelling grounds of public interest, which did not exist in this case – citing Reilly above.(6) In addition, the existence of the Court’s power to make a declaration or mandatory order made a mockery of the Defendant’s interpretation[35]On behalf of the Defendant, Mr Gullick argued that:(1) If the Defendant’s decision was quashed for error of law and remitted for re-determination, then the question of whether the Claimant had a right to compensation would not have been “finally determined” before the coming into force of s.175 on 13 March 2014.(2) Parliament’s use of the words “to which the question whether there is a right to compensation has not been finally determined before that day by the Secretary of State” was clearly intended to ensure that cases in which there had been a final determination of the right to compensation prior to 13 March 2014, but in which the assessment of the payment of compensation had not been finally concluded, would not be affected by the change.(3) The use of the words “not been finally determined” was plainly apt to describe the situation that would pertain if, as in this case, a decision made pre-commencement was quashed post-commencement. That was clearly why the word “finally” had been used – otherwise it would be otiose.(4) The Claimant’s argument failed to take into account the legal effect that an order quashing the decision of 11 June 2012 would have, namely (citing Judicial Remedies in Public Law (5th Edition, 2015) and Boddington v British Transport Police [1999] 2 AC 143 at 155) that the decision would be retrospectively invalidated and deprived of legal effect since its inception – thereby resulting in the Claimant being in the same position as every other applicant whose right to compensation had not been finally determined prior to 13 March 2014.(5) It was appropriate (by reference to the summary by Carnwarth LJ in R(D) v Secretary of State for Justice [2010] 1 WLR 1782 at [44]-[51]) to have regard to the Explanatory Notes to the 2014 Act and to the Impact Assessment – both of which supported the Defendant’s argument.(6) In any event, albeit that Parliament’s intention was clear, the Claimant’s argument that s.175 had “retrospective effect” was misconceived and had fallen into precisely the error identified in Bennion on Statutory Interpretation (6th Edition, 2013 at p.293)as to what objectionable retrospectivity is – because a change in the law is not objectionable “merely because it takes note that a past event has happened, and bases new legal consequences upon it.” All that Parliament had done was to define “miscarriage of justice”, there was no change of past decisions.(7) Nor was there any incompatibility with the Claimant’s Article 6 rights – s.175 did not constitute retrospective legislation nor did it interfere (whether retrospectively or prospectively) with judicial decision making in respect of the lawfulness of the decision made on 11 June 2012, and was self-evidently different from the situation considered in Reilly (above).(8) There was nothing in the Claimant’s mandatory order argument – not least because a mandatory order would first require the Court to quash the original decision.

The second issue – the merits

[36]As I have said, given my conclusion on the first issue, this issue does not require determination as such. It suffices to indicate that if it had, I would have been strongly inclined, essentially for the reasons advanced on his behalf, to rule in favour of the Defendant. It will be recalled that that interpretation was, in effect, the joint position of the parties in Clark & Drury (above)

Conclusion

[37]For the reasons set out above, this Claim is dismissed. I will deal with any consequential applications administratively. :