Tue, 01 Jun 2021
On 26 and 27 May 2021, No5’s Philip Rule and Benjamin Harrison appeared in the Divisional Court in a claim seeking judicial review of the decision of the Secretary of State for Justice to refuse their client, DK, compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988. They were instructed by Martin Bridger, of Instalaw.
The Claimant's conviction was previously quashed by the Court of Appeal in light of fresh evidence - a new set of Facebook messages - discovered after the trial, and after the Claimant had suffered imprisonment. The Court of Appeal found it to be very cogent evidence supporting his truthfulness and the reliability of his account:
We have come to the conclusion that, in a case of one word against another, the full Facebook message exchange provides very cogent evidence both in relation to the truthfulness and reliability of A, who, in any event, gave a series of contradictory accounts about other relevant matters, and the reliability of the applicant’s account and his truthfulness.
It is also a fact that the accuser had provided a false altered record - which is argued to be likely the offence of perverting the course of justice, or in any event that was another untruthful act.
Section 133 of the 1988 Act provides, in part, that:
(1) … 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.
(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 references in the rest of this Part to a miscarriage of justice are to be construed accordingly). [Emphasis added.]
In this case, the Secretary of State accepted that the new Facebook messages were ‘newly discovered facts’ for the purposes of section 133(1). But he did not accept that the messages showed beyond reasonable doubt that the Claimant did not commit the offence. Statistics made available in this claim demonstrate that almost never is that accepted - which begs the question of whether this really is an approach in keeping with the presumption of innocence, or even adequate engagement with the evidence and the wronged individual.
This judicial review is thought to raise, for the first time, the question of what procedural requirements are necessary and appropriate for this important decision-making, in order to comply with standards of common law fairness.
The claim also raises issues as to the application of the civil limb of Article 6(1) ECHR, the application of Article 8 ECHR, and the arguable failure to observe the presumption of innocence guaranteed by Article 6(2) ECHR. Other grounds of review pursued on behalf of the Claimant include:
(i) error of principle in taking an incorrect approach to the proper application of the statutory test;
(ii) failure to consider all relevant factors, or wrongly taking into consideration immaterial factors;
(iii) fundamental error made of material fact or important facts wrongly overlooked; and/or
(iv) the decision is wrong, or Wednesbury unreasonable or irrational.
After two days of argument, judgment has been reserved.