| CRIME — Miscarriage of justice — Statutory compensation — Court of Appeal quashing claimant’s conviction as unsafe — Whether ipso facto miscarriage of justice — Whether defendant entitled to compensation where innocence not established beyond reasonable doubt— Criminal Justice Act 1988, s 133 — Human Rights Act 1998, Sch 1, Pt 1, art 6(2) — International Covenant on Civil and Political Rights (1977) (Cmnd 6702, art 14(6)
R (Harris) v Secretary of State for the Home Department; [2008] WLR (D) 237
CA: Sir Mark Potter P, May and Hughes LJJ: 15 July 2008
A defendant whose conviction was quashed on appeal would only be entitled to statutory compensation where that defendant’s innocence had been acknowledged or where there had been serious failures of the trial process.
The Court of Appeal so held in a reserved judgment when dismissing the appeal of the claimant, Lorraine Allen (formerly Harris), against Mitting J’s dismissal on 10 December 2007 of her claim for judicial review of the decision of the Home Secretary on 31 May 2006 that she was not eligible for compensation under s 133 of the Criminal Justice Act 1988. The grounds for the appeal were that Mitting J had applied R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), a decision which was wrong and inconsistent with the presumption of innocence contained in art 6(2) of the European Convention and that, since in quashing her conviction for the manslaughter of her four-month-old son on fresh medical evidence the Court of Appeal (Criminal Division) had implicitly decided that a jury presented with the same material would have been bound to acquit, she had suffered a miscarriage of justice.
HUGHES LJ said that the appellate court had concluded that the divergence of fresh medical opinion, which pointed away from a non-accidental head injury, might reasonably have affected the jury’s decision to convict and therefore the conviction was unsafe; on that basis it was accepted that the claimant’s innocence had not been demonstrated beyond reasonable doubt. At issue therefore was the proper meaning of s 133 of the 1988 Act and of the expression “miscarriage of justice” contained therein and whether the claimant was entitled, under art 6(2), to be treated as having her innocence established and therefore, ipso facto, had suffered a miscarriage of justice. Lord Steyn in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, paras 34–56 had held that in context “miscarriage of justice” meant that the innocence of the defendant was acknowledged; Lord Bingham of Cornhill, at paras 4–9, hesitated to accept that interpretation but was ready to accept that the phrase extended to serious failures of the trial process whether or not innocence was demonstrated. Since here nothing had gone wrong with the conduct of the trial, even on the interpretation of s 133 favoured by Lord Bingham, the claimant could not succeed. That, bearing in mind Lord Bingham’s emphasis in Mullen’s case that art 14(6) of the International Covenant on Civil and Political Rights (1977) was directed to ensuring that defendants were fairly tried, accorded with the conclusion in Clibery’s case which had been correctly decided. Rejecting the claimant’s further submission that once her conviction was quashed she reverted to the position of an unconvicted person who could rely on the presumption of innocence contained in art 6(2), in his Lordship’s view compensation in a fresh evidence case under art 14(6) and s 133 of the 1988 Act was to be paid not only where there had been a reversal of the conviction but also where the additional factor of a miscarriage of justice was demonstrated beyond reasonable doubt to have taken place.
SIR MARK POTTER P and MAY LJ agreed.
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