Clark & Anor, R (On the Application Of) v The Secretary of State for Justice

Factual and Procedural Background

This judicial review concerns claims for compensation under section 133 of the Criminal Justice Act 1988 (CJA 1988) by two claimants, police officers convicted in 2000 of conspiracy to supply class B drugs and perverting the course of justice. Their convictions arose from allegations of corrupt "recycling" of seized drugs within their police unit. After a first unsuccessful appeal in 2000, their convictions were quashed following a Criminal Cases Review Commission (CCRC) reference in 2009, and a retrial was ordered on certain counts.

At a pre-trial hearing for the retrial in 2011, the prosecution offered no evidence, largely due to the principal prosecution witness becoming hostile. Subsequently, the claimants sought compensation for miscarriage of justice, which was refused by the Secretary of State for Justice. The claimants challenged these refusals by judicial review.

The convictions and retrial decisions were heavily influenced by evidence from two key witnesses who were police informants but whose credibility was seriously questioned due to admitted criminality and potential collusion. Extensive non-disclosure of material by the prosecution was found, which undermined the safety of the convictions.

The retrial was ordered despite these issues because the Court of Appeal considered there was still strong evidence against the claimants from other sources. The prosecution later decided not to proceed with the retrial due to the loss of key evidence. The claimants argued this meant they were entitled to compensation under section 133 of the CJA 1988.

Legal Issues Presented

1. Whether the claimants were entitled to compensation under section 133 of the CJA 1988 following quashing of their convictions and the decision not to proceed with a retrial.
2. The proper interpretation of "miscarriage of justice" under section 133, particularly in light of the leading authority R (Adams) v Secretary of State for Justice.
3. Whether the Secretary of State erred in law by not concluding that the decision to offer no evidence at retrial satisfied the statutory test for compensation.
4. The extent to which prosecutorial decisions and evidential weaknesses impact the statutory entitlement to compensation.

Arguments of the Parties

Appellants' Arguments

• The decision by the prosecution to offer no evidence at retrial effectively demonstrated that no conviction could properly have resulted, satisfying the Category 2 test in Adams.
• If the retrial judge would have stayed the proceedings as an abuse of process, this should entitle them to compensation.
• The Secretary of State failed to properly apply the correct legal test under section 133 and engaged in an erroneous substitution of his role for that of the trial judge or jury.
• Non-disclosure and prosecutorial misconduct undermined the safety of the convictions and justified compensation.

Respondent's Arguments (Secretary of State for Justice)

• The statutory test for compensation requires that the new or newly discovered fact shows beyond reasonable doubt that the claimant did not commit the offence, or that no conviction could possibly be based on the evidence (Category 2 test).
• The decision not to proceed with prosecution is a separate prosecutorial discretion and is not coterminous with the statutory test for compensation.
• The Secretary of State was entitled to conclude that there remained credible evidence, including confessions and other witness evidence, that would justify a conviction at retrial.
• The loss of a principal witness's evidence did not automatically satisfy the test for miscarriage of justice under section 133.
• The Secretary of State properly applied the legal principles from Adams and Ali and his decision was rational and lawful.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Adams) v Secretary of State for Justice [2011] UKSC 18	Defines "miscarriage of justice" under section 133 CJA 1988; distinguishes Category 1 (conclusive proof of innocence) and Category 2 (evidence so undermined no conviction possible).	The court applied Adams to confirm the Secretary of State's role is to assess whether the new fact shows beyond reasonable doubt no conviction could be based on the evidence, not to act as a trial judge.
R (Ali and Others) v Secretary of State for Justice [2014] EWCA Civ 194	Clarifies and disapproves a lower court's reformulation of the Adams test; emphasizes the Secretary of State's decision is subject to judicial review on public law grounds only.	The court relied on Ali to affirm the correct legal test and to reject the claimants' broader interpretation of miscarriage of justice.
R v Drury & Ors [2001] EWCA Crim 975	First appeal against conviction and sentence; upheld convictions but reduced sentences.	Referenced as part of the procedural history; convictions initially upheld.
R v & Clark & Anor [2010] EWCA Crim 2849	Quashed convictions following CCRC reference; ordered retrial on certain counts.	Central to the case; the quashing and retrial order formed the basis for the compensation claim.
R v Easton [1995] 2 Cr.App.R. 469	Guidance on reliability of witnesses and the need for caution in considering evidence from unreliable informants.	Used to assess the credibility of key prosecution witnesses Fleckney and Putnam.

Court's Reasoning and Analysis

The court carefully examined the statutory framework under section 133 of the CJA 1988, particularly the interpretation of "miscarriage of justice" as developed in Adams and Ali. It emphasized that compensation is only payable where the new or newly discovered fact shows beyond reasonable doubt that the claimant did not commit the offence or that no conviction could possibly be based on the evidence (Category 2 test).

The court distinguished the prosecutorial decision not to proceed with a retrial from the statutory test for compensation. It noted that prosecutorial discretion involves broader considerations and does not equate to a legal finding that no conviction could be secured.

The evidence against the claimants, including confessions and independent witness testimony, remained sufficiently strong in the court's view to justify the retrial and to preclude a finding of miscarriage of justice under section 133. The decision by the prosecution to offer no evidence was largely due to the hostility of a key witness, but this alone did not satisfy the statutory test.

The court also rejected the claimants' argument that if a retrial judge would have stayed proceedings as an abuse of process, compensation should follow. It clarified that the statutory test is distinct and does not depend on such procedural rulings.

The Secretary of State's decision was found to be lawful, rational, and consistent with the statutory test and relevant authorities. The court declined to substitute its own view for that of the Secretary of State, noting that judicial review is limited to public law grounds.

Delays and procedural issues in the Secretary of State's decision-making process were acknowledged but found not to have caused substantive unfairness or prejudice.

Holding and Implications

The court DISMISSED the claimants' applications for judicial review and upheld the Secretary of State's refusal to award compensation under section 133 of the CJA 1988.

The direct effect is that the claimants are not entitled to compensation for miscarriage of justice under the statutory regime as it stood prior to amendment. The decision confirms the strict interpretation of "miscarriage of justice" and clarifies that prosecutorial decisions not to proceed do not automatically trigger compensation rights. No new legal precedent was established beyond reaffirming existing authority, and no broader implications beyond the parties' case were discussed.