High Court finds Claimant has to prove innocence of third party beyond reasonable doubt to be successful in a miscarriage of justice compensation claim

In Ali v Secretary of State for Justice [2023] EWHC 3059 (Admin), 29 November 2023, Mr Justice Linden held that applications for compensation following miscarriages of justice can be made on the basis that a newly discovered fact, when added to existing evidence, points toward a third party having carried out the relevant offending. The Judge concluded that where a third party is implicated in the offending through DNA evidence of their presence at the scene the applicant for compensation would need to show that the DNA showed beyond reasonable doubt that the third party had carried out the offending. 

The decision reflects the stringent interpretation and wording of s 133(1) and (1ZA) of the Criminal Justice Act 1988 (the “innocence” test) which makes clear that where a person who was convicted of an offence has their conviction reversed, or they have been pardoned, they will only be entitled to compensation if the conviction was overturned due to a new or newly discovered fact and where that fact “shows beyond reasonable doubt that the person did not commit the offence.” Section 133(1ZA) is the subject of an outstanding application before the European Court of Human Rights challenging its consistency with Article 6 of the European Convention on Human Rights. 

In this case the Court of Appeal Criminal Division had serious misgivings about the safety of the Claimant’s convictions for two charges of indecent assault. The newly discovered DNA evidence linked a phone found at the scene of one of the crimes (and identified as an object likely used in the commission of the offence) to a Turkish man with a history of sexual offending in public places, in the same location, and whose description matched the first descriptions of the assailant given by both complainants – and those descriptions did not match the Claimant at all. 

The Judge held that in principle s 133 allows an applicant for compensation to argue that the fresh evidence could be added to existing evidence which pointed to the attacker being someone else, as a means of showing that he had not committed the offending. Despite this, “with some regret” he considered that the evidence in Mr Ali’s case showed that the other man was “much more likely to have carried out the offending than the Claimant” but that this would not satisfy s 133. 

The Claimant was represented by Maya Sikand KC and Rosa Polaschek of DCS’s Public Law Team, instructed by Susie Labinjoh and Hermione Cox at Hodge, Jones & Allen. 

The judgement is available here.