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of a change in the law or a subsequently appreciated error in the trial judge’s summing up there is no new or newly discovered fact107.  There is also a distinction between newly discovered evidence and newly discovered facts; the former in itself is insufficient and must lead to new factual conclusions, for eligibility to be established108.  However, the newly discovered fact does not have to concern a wholly new point; it may relate to an issue upon which some evidence was considered at the trial109.  The applicant has to show that the new or newly discovered fact was the only or principal reason for the conviction being quashed and that it emerged after the ordinary appellate process had been exhausted110.

Shows beyond reasonable doubt there was a miscarriage of justice

59.The meaning of this element of the statutory test has so far caused the most difficulty.  In R (Mullen) v Secretary of State for the Home Department111 the House of Lords were not agreed on this issue.  Their Lordships were agreed that the claimant’s circumstances did not fall within the statutory provision as, although there had been an abuse of executive power in relation to the way that he was brought to the UK, there was no defect complained of in relation to his trial or in the investigation leading up to it.  Their Lordships nonetheless considered what would amount to a “miscarriage of justice”, had the complaint concerned a defective investigation or trial.  Lord Steyn and Lord Roger considered that it had a narrow meaning, extending only to cases where the claimant was clearly innocent112.  On the other hand Lord Bingham and Lord Walker suggested that the phrase could cover all cases where the claimant should not have been convicted113.  Lord Scott did not find it necessary to decide between the two views.  

Accused suffered punishment

60.As indicated by the statutory wording, the convicted person must have “suffered punishment”, that is to say had a sentence passed on him or her114.  In order to

107 R v Secretary of State ex parte Batemen & Howse (1994) Admin LR 175, In re McFarland [2004] 1 WLR 1289 HL.

108 R v Secretary of State for the Home Department ex parte Garner [1999] 11 Admin LR 595.

109 R (Murphy) v Secretary of State for the Home Department [2005] 1 WLR 3516.

110 R (Murphy) v Secretary of State for the Home Department (above).

111 [2005] 1 AC 1HL

112 See paras 56 & 69.

113 See paras 4, 9 & 70.

114 Subsection (6).

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