High Court: Miscarriage of justice compensation granted

The High Court, sitting qua the Central Criminal Court (as the court of re-trial), has certified that a man is entitled to compensation for wrongful conviction.

The man had been acquitted of murder but a newly-discovered fact revealed that there had been a miscarriage of justice.


Yusuf Ali Abdi was tried in the Central Criminal Court in December 2019, charged with the murder of his infant son in April 2001. The jury acquitted him of murder and returned the special verdict of not guilty by reason of insanity. The jury accepted the evidence that, at the time of the killing, Mr Abdi was suffering from compelling overpowering delusions arising from schizophrenia.

He had been previously tried in the Central Criminal Court in May 2003. He was convicted of the murder of his son in that trial, when the jury did not accept his defence that the evidence established that he killed his son while legally insane.

Evidence that he was suffering from schizophrenia was rejected by the jury in the original trial, as it was disputed by expert witnesses. An appeal to the Court of Criminal Appeal was unsuccessful.

Chronic psychiatric conditions may vary in intensity, and new symptoms and behaviour may result in a review and change of diagnosis. Some years following his conviction, he was diagnosed with schizophrenia by psychiatrists in the Central Mental Hospital. He applied to the Court of Appeal for an order quashing his conviction under s.2 of the Criminal Procedure Act 1993.

In 2019, the Court of Appeal held that the confirmed diagnosis of schizophrenia, and the medical reports supporting it, were “newly discovered facts” which indicated that there was a real risk that the murder conviction involved a “miscarriage of justice”.

The Court of Appeal took the view that if this diagnosis of schizophrenia was an accepted fact at the time of the original trial, the jury may have taken a different view of the evidence and concluded that Mr Abdi was insane at the time of the killing. The conviction was quashed and a re-trial was ordered.

The diagnosis changed gradually. By the time of his re-trial, the disputed medical opinion that Mr Abdi suffered from schizophrenia at the time of the first trial had become accepted fact.

The Court of Appeal allows such an appeal under s.2 of the 1993 Act where it considers that there is a real prospect that a jury would come to a different conclusion if “newly-discovered facts” were available as evidence at the trial or if it considers that the new material points in some concrete way to the result in the original trial being a miscarriage of justice.

The Court of Appeal in exercising jurisdiction under s.2 is only concerned with whether the “newly-discovered fact” demonstrates that the initial verdict is unsafe and that there has been a “miscarriage of justice” in that sense. The term “newly-discovered fact” in s.9(1) has the much the same as meaning as it does in s.2, being “….a fact discovered by or coming to the notice of a convicted person after the appeal proceedings have been finally determined…”. It is sufficient that the new material be discovered or come to the notice of the convicted person after trial as in DPP v Wall [2005] IECCA 140.


In the matter of an application under the Criminal Procedure Act 1993 S.9, being compensation for wrongful conviction, counsel for the Director of Public Prosecutions accepted that the verdict amounted in law to an acquittal and that had a special verdict been entered in 2003, this would have amounted to an acquittal, but he suggested that the nature of the activity which Mr Abdi was proved to have engaged in showed that Mr Abdi was not “acquitted” within the sense of that term as used in s.9.

Mr Justice Alexander Owens, sitting as the Central Criminal Court, said that “miscarriage of justice” in s.9 is the popular meaning which connotes “a failure of the judicial system to attain the ends of justice”, citing the Court of Criminal Appeal in DPP v Hannon [2009] 4 IR 147. The words “miscarriage of justice” in s.9(1) are used convey that “something has gone seriously wrong in relation to the original trial process which has led to a conviction and not merely that there are misgivings about the result.”

The judge said that “Miscarriage of justice” is used in a different sense in ss.2 and 3, noting that these sections deal with criteria which must be met by either an applicant who relies on s.2 or an appellant under s.3 in order to succeed in an appeal against conviction: “It is not necessary to show the matters specified in s.9 in order to succeed in an application under s.2.”

Mr Justice Owens noted that things had “moved on” since the decision of the Court of Appeal. The “decisive factor” in the re-trial was agreement by all psychiatric experts who gave evidence that Mr Abdi was suffering from schizophrenia when he killed his son.


Mr Justice Owens said that he suspected it was not the first time that something of this nature had happened in an insanity case. He said that similar issues arise where expert evidence is relied on in trials, giving an example of a forensic science conclusion which may have been central to a conviction which is subsequently demonstrated to be erroneous.

“The error discovered might be in the science or in the scientist. The effect of the error may be that a person who would otherwise be treated as not guilty of an offence and who may be innocent is convicted. In that scenario it would be difficult to take seriously any argument that the newly-discovered fact did not result in a miscarriage of justice.”

The court held that there was no reason why an incorrect diagnosis should be treated differently to any other expert error. The court therefore issued a certificate.

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