JUDGMENT

Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke:

Lord Phillips:

Introduction

[1] The three appellants in these two appeals were each convicted of murder. Each had his conviction quashed pursuant to a reference to the Court of Appeal by the Criminal Cases Review Commission ("CCRC") in the exercise of its powers under Part II of the Criminal Appeal Act 1995 ("the 1995 Act"). In each case no order was made for a retrial. Each claimed compensation from the Secretary of State pursuant to s 133 of the Criminal Justice Act 1988 ("s 133"). That section applies to England and Wales, to Northern Ireland and to Scotland. I shall not refer to provisions which cater for differences of procedure in Scotland. The most material part of that section provides:

"(1)...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..."

In each case the claim for compensation was refused by the Secretary of State, whose decisions were upheld on judicial review both at first instance and on appeal. The common issue that arises in relation to each appeal is the meaning of "miscarriage of justice" in s 133. In the case of Adams there is a second issue, which is the meaning of "a new or newly discovered fact".

[2] Lord Hope has set out the background to the statutory right to compensation provided by s 133 and I need not repeat his summary. Lord Kerr has set out in detail the relevant facts in the appeals of Mr MacDermott and Mr McCartney and I gratefully adopt his account of these. It remains for me to summarise the facts relevant to the appeal of Mr Adams They can be shortly stated. A more detailed summary can be found in the extract of the judgment of Simon J at first instance, annexed to the judgment of the Court of Appeal [2009] EWCA Civ 1291; [2010] QB 460.

The Facts In Mr Adams Appeal

[3] On 18 May 1993 Mr Adams was convicted in the Crown Court at Newcastle of the murder of a man called Jack Royal and sentenced to life imprisonment. He appealed to the Court of Appeal and on 16 January 1998 his appeal was dismissed. Some nine years later his case was referred to the Court of Appeal by the CCRC on three grounds. The first, and only material ground, was that incompetent defence representation had deprived him of a fair trial. On 12 January 2007 the Court of Appeal allowed his appeal on this ground.

[4] The relevant shortcomings in the conduct of Mr Adams defence were, in large measure, the result of a late change of his counsel. This was made when those originally instructed to represent him had to withdraw from the case because of a conflict of interest. Those instructed to replace them were hard pressed to prepare for the trial and failed to consider relevant "unused material". Some of this had been disclosed by the prosecution. Some was available on a computer database known as the Holmes database.

[5] The case against Mr Adams was essentially based on the evidence of a single witness, Mr Kevin Thompson. His evidence was supported by that of two police officers. It was the defence case that Mr Thompson was lying, that he had entered into a deal with the police to give evidence against Mr Adams, and that he had been fed with information about Mr Royals murder by the police. The evidence which had been overlooked by defence counsel would have provided valuable assistance in cross-examining Mr Thompson and the two police officers. The Court of Appeal concluded that, had it been available and deployed, the jury might not have been satisfied of Mr Adams guilt. Accordingly the Court quashed the conviction, but in doing so stated expressly that they wer