The Queen on the Application of MULLEN v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1882

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT) (SIMON BROWN LJ & SCOTT BAKER J)

[2002] EWCA Civ 1882

Case No Case No: C/2002/0483

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

The Queen on the Application of MULLENAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Before

Lord Justice Schiemann

Lord Justice Rix

Mr Justice Pumfrey

Nigel Pleming QC & Campaspe Lloyd-Jacob (instructed by Christian Khan Solicitors) for the Appellant

Philip Sales & Hugo Keith (instructed by Treasury Solicitors) for the Respondent

Date 20 December 2002

Lord Justice Schiemann :

Introduction

[1]Mr Mullen was convicted at a trial. The trial should never have taken place. He had been brought to this country in circumstances which were unlawful. Had the courts known about this they would have stayed the prosecution because it amounted to an abuse of process. Can Mr Mullen claim compensation under section 133 of the Criminal Justice Act 1988? That is the immediate question before this court.

[2]The Divisional Court

[2002] EWHC 230 (Admin)

[2002] 1 WLR 1857

, (Simon Brown LJ and Scott Baker J), ruled that section 133 only provides for compensation for those ultimately proved innocent. The Divisional Court decision has itself been referred to with approval by the Court of Appeal in Northern Ireland : In the matter of an application by William McFarland for Judicial Review [2002] NICA 28 (Carswell LCJ, Campbell LJ, and Weatherup J). So this appeal also raises some questions about the scope of the presumption of innocence.

[3]The facts giving rise to this claim are relatively simple. On 8 th June 1990 at the Central Criminal Court the claimant was convicted of conspiracy to cause explosions likely to endanger life or cause serious injury to property and was sentenced to 30 years' imprisonment. He was alleged to have acted as quartermaster for an active IRA unit in London. He had been arrested in Zimbabwe on 6 th February 1989, immediately put on a plane to England and arrested on arrival at Gatwick the following day.

[4]Leave to appeal against conviction out of time was granted on 29 th January 1998. On 4 th February 1999, after the claimant had been in prison for ten years, the Court of Appeal (Criminal Division) allowed his appeal

[1999] 2 Cr App R 143

. It did so because it considered that his deportation from Zimbabwe to the United Kingdom, in which the British authorities had been involved, represented a "blatant and extremely serious failure to adhere to the rule of law" and involved a clear abuse of process. In its judgment this abuse of process should have come to light prior to the trial and had it done so the criminal proceedings would have been stayed. The court concluded that by reason of the abuse of process the prosecution and therefore the conviction of the appellant was unlawful.

[5]Mr Pleming does not accept that his client was guilty of the offence charged although he accepts that he was convicted. The Court of Appeal (Criminal Division) in 1999 heard no sustained argument to the effect that the judge fell into error in his summing up or that there was something else wrong about the way the trial itself was conducted. Mr Pleming suggests that it is possible that counsel conducting the appeal rightly concluded that he had an argument based on abuse of process and therefore decided forensically not to press more difficult grounds. That may be so. We cannot judge. I am content to proceed on the basis that Mr Mullen's conviction would not have been quashed had it not been for the abuse of process.

[6]Following the claimant's release, his solicitors applied on his behalf for compensation pursuant to section 133 or, failing that, under the ex gratia scheme based on the Secretary of State's written statement of 29 th November 1985. By letter dated 6 th March 2000, finally confirmed on 15 th March 2001, the Home Secretary refused to pay compensation on either basis. He informed Mr Mullen's solicitors that he had personally considered the matter very carefully.

[7]The claimant attacked both limbs of that decision before the Divisional Court. That Court refused to quash the decision. The appellant appeals to this court. The Home Secretary contends that the Divisional Court came to the right conclusion for the right reasons. Indeed he goes further. He submits that, even if the Court were positively to find a convicted man innocent of the crime of which he had been previously convicted such a finding would not bind the Home Secretary who is free to come to his own conclusions on the matter since he might have access to material which was not available to this Court when it quashed the conviction e.g. DNA evidence.

[8]It is useful first to look at the claim under the statute since if that succeeds the validity of the discretionary decision is of no significance. The centre of the dispute concerns the meaning of the phrase 'miscarriage of justice' in section 133(1). The Divisional Court held that the word had in this context a narrow meaning which excluded situations such as the present. Before setting out its reasoning and the attack made on it I shall set out the section in full. Section 133 Criminal Justice Act 1988 "(1) Subject to subsection (2) below, 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 unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State. (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State. (4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to -(a) the seriousness of the offence of which the person was convicted and of the punishment resulting from the conviction;

(b) the conduct of the investigation and prosecution of the offence; and

(a) on an appeal out of time; "

[9]The Court of Appeal in R v Secretary of State for the Home Department Ex p Bateman (1994) 7 Admin LR 175 held that the words in subsection (1) 'on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice' qualified not only 'he has been pardoned' but also 'his conviction has been reversed'. No reason has been advanced by counsel to suggest that this conclusion was erroneous. The decision of the Divisional Court

[10]Simon Brown LJ delivered the leading judgment with which Scott Baker J agreed. They each found the submissions made on behalf of the Secretary of State compelling. Simon Brown L.J. said this (I have italicised the passages with which I express my respectful disagreement):-"19. [The submission on behalf of the Secretary of State] is in two parts. First it is submitted that section 133 was enacted to give effect to the United Kingdom's treaty obligations undertaken upon ratification of the International Covenant on Civil and Political Rights (1977) (Cmnd 6702) and accordingly the term "miscarriage of justice" in section 133 bears the same meaning as in article 14(6) of the Covenant rather than whatever meaning it may bear in our domestic legal system. Under the Covenant states are only obliged to compensate those ultimately found to be innocent. Secondly, and consistently with that approach, section 133(1) can readily be seen not to give a right to compensation to all appellants whose out of time appeals ultimately succeed on the basis of some "new or newly discovered fact", but only to those who are shown "beyond reasonable doubt" to have suffered a miscarriage of justice. This, therefore, can only refer to those proved innocent. Let me consider each limb of the argument in turn.

20. Article 14(6) of the International Covenant on Civil and Political Rights reads:

"When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him." 21. In giving effect to this obligation, Parliament omitted from section 133(1) the phrase "by a final decision", reflecting it instead in the definition of "reversed" in section 133(5) by referring there to "an appeal out of time"; and substituted for the word "conclusively" in Article 14(6) the hallowed expression "beyond reasonable doubt"

. The right to compensation thus arises only when each of four conditions is satisfied: (i) the conviction is quashed on an appeal out of time (not, therefore, when a timeous appeal succeeds, nor, of course, on an acquittal at trial); (ii) the appeal succeeds on the ground of a new or newly discovered fact; (iii) the appellant was in no way responsible for the previous non-disclosure of that fact; and (iv) that fact shows beyond reasonable doubt that there has been a miscarriage of justice. 22. Section 133 faithfully and accurately gives effect to the UK's international law obligation under Article 14(6) of the Covenant. That being so, submits Mr Sales [who appeared and appears for the Home Secretary], the court should have regard to article 3 of the Seventh Protocol to the European Convention on Human Rights ( which precisely reproduces the language of article 14(6) ) and, more particularly, to the 1985 explanatory report relating to that Protocol, which, with regard to article 3, states at paragraph 25:

"The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent." 23. True it is that the UK has never ratified that Protocol. Nevertheless, submits Mr Sales, the explanatory report is a legitimate aid to the construction of an international obligation expressed in these terms. Article 31 of the Vienna Convention on the Law of Treaties 1969 (Cmnd 4818) requires that a treaty be interpreted in accordance with the ordinary meaning to be given to its terms in their context, that context being recognised to include any travaux préparatoires. The explanatory report constitutes such a document; a committee of experts were there proposing a text identical to article 14(6) of the Covenant by way of a Protocol to the Convention and were providing an authoritative commentary upon its application. The document is analogous to that of a Law Commission report leading to domestic legislation. 24. Turning to the second limb of the argument, the Secretary of State submits that in any event this is the natural meaning of the expression "miscarriage of Justice" used in this context. It simply makes no sense to talk in terms of an abuse of process (consisting of the claimant's illegal deportation to stand trial) showing beyond reasonable doubt that there has been a miscarriage of justice. As the authorities (including R v Mullen [2000] QB 520 itself) show, where, as here, there has been a abuse of process, there is a discretionary balance to be struck by the court as to whether the proceedings should be stayed (if the question arises at trial) or the conviction quashed (if the question arises on appeal) as "an affront to the public conscience" (as Lord Steyn put it in R v Latif [1996] 1 WLR 104 ) or "an affront to justice" (as Auld LJ put it in R v MacDonald [1998] Crim LR 808 also cited in R v Mullen ). That balance is not struck "beyond reasonable doubt": the use of that expression of itself implies that the defendant must be shown to have been erroneously convicted rather than subject to an unlawful process. 25. In my judgment the Secretary of State's argument is unanswerable. What was shown beyond reasonable doubt here was that there had been an abuse of process in bringing the claimant to trial. That was the "newly discovered fact"

. But that fact did not itself show beyond reasonable doubt that there had been a miscarriage of justice. All that it showed was that the court needed to conduct a "discretionary exercise" to decide in effect which of two important public interests should prevail: the public interest in trying, convicting, and punishing the guilty or that in discouraging breaches of the rule of law and preserving the integrity of the criminal justice system. True, it had "no doubt" that the balance came down "decisively" in the defendant's favour. But that was by no means to find that he was innocent, still less that he was plainly so. Rather it was a judgement that the lawful administration of justice would be affronted by his remaining convicted and imprisoned. 26. In short, a miscarriage of justice in the context of section 133 means, in my judgement, the wrongful conviction of an innocent accused. Compensation goes only to those ultimately proved innocent, not to all those whose convictions are adjudged unsafe. The quashing of the claimant's conviction in this case was a vindication of the rule of law, not the righting of a mistaken verdict. Although, as prosecuting counsel in Mullen submitted and the Court of Appeal held

[2000] QB 520

, 533, the word unsafe "can refer to a miscarriage of justice in the round, including such abuse of process as would have prevented proceedings", that is not the sense in which the expression miscarriage of justice is used in section 133. The Court of Appeal in R v Secretary of State for the Home Department Ex p Bateman 7 Admin LR 175 (of which I was a member) was simply not required to address the point now arising; both appeals there failed on other grounds. Sir Thomas Bingham MR's dictum quoted in paragraph 18 above cannot carry the day." The Travaux Préparatoires

[11]The Divisional Court, as one sees from paragraph 23 of the judgment, was referred by Mr Sales to an Explanatory Report to the 7th Protocol to the European Convention on Human Rights. Article 3 of this Protocol (which incidentally has not been ratified by the UK) in its English version is in identical terms to the English version of Article 14(6) of the ICCPR. This report was produced, in I think the late 1980s, by the Council of Europe's Steering Committee for Human Rights which, Mr Sales tells us, was composed of "senior experts from the governments of the Member States". It is to be noted that the report states in paragraph 4:

"It was understood that participation of member States in this Protocol would in no way affect the interpretation or application of provisions containing obligations, among themselves, or between them and other States, under any other international instrument."

[12]However, Mr Sales relied on a sentence in paragraph 25 which states in relation to Article 3 of the 7 th protocol:

"The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent ."

[13]It may well be, as he contends, that the words which I have italicised were intended as indicating what was understood as being comprised within the concept of miscarriage of justice. On the other hand, it is perhaps arguable that all that was meant was that the payment of compensation would be the acknowledgement that the person concerned was innocent.

[14]For my part I have not found that report as helpful as the travaux préparatoires for the ICCPR itself which surprisingly were not, I think, produced to the Divisional Court. In general the travaux préparatoires of the instrument falling to be interpreted are more likely to be helpful than the travaux préparatoires of another instrument prepared later. A history of the travaux préparatoires of the ICCPR appears in Professor Bossuyt's 'Guide to the travaux préparatoires of the International Covenant on Civil and Political Rights' published in 1987 by Martinus Nijhoff - the page numbers which follow are taken from that volume. From that a number of things became clear. The Covenant was many years in preparation, drafting having started in 1947. For present purposes it suffices to pick the trail up at the 14 th session of the Third Committee in 1959. Then, the words which now appear in Article 14(6) were attacked by the United Kingdom as being objectionable on the ground that they allowed compensation to persons who were "clearly guilty but whose convictions had been annulled for reasons of form or procedure" (page 313)

[15]Other representatives accepted that this was implicit in the words but felt that this was not objectionable. An Argentinean amendment to suggest that "the judicial recognition of the innocence of a convicted person shall confer on him the right to request an award of compensation ..." was rejected and the present wording was adopted. (page 314)

[16]All that seems to indicate that all were agreed that the concept of miscarriage of justice was used in its wider rather than in its narrower sense. There is absolutely no suggestion that the parties understood that there was a requirement that innocence be proved.

[17]I would thus reject the conclusion of the Divisional Court that Article 14(6) of the ICCPR uses the words "miscarriage of justice" in such a narrow sense.

[18]I mention in passing that Article 9(5) of the Covenant provides that:

"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

However, it was (rightly in my judgment) not suggested in argument that the presence of that right in that Article had the effect of reducing the scope of Article 14(6) so as not to include within it those (such as Mr Mullen) who fell within Article 9(5). The decision of the Court of Appeal (Criminal Division)

[19]The powers of that Court are set out in section 2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995. The position is that the Court of Appeal:

"(a) shall allow an appeal against conviction if they think that the conviction is unsafe and (b) shall dismiss such an appeal in any other case."

That section is the successor of section 4 of the Criminal Appeal Act 1907. As Lord Bingham of Cornhill pointed out in R v Pendleton

[2001] UKHL 66

[2002] 1 WLR 72

at paragraph 8 although the Act of 1907 has been repeatedly amended, the scheme of the act has not fundamentally altered. He stressed at paragraph 19 that the question for the consideration of the Court of Appeal is whether the conviction is safe not whether the accused is guilty.

[20]The appellant argued before the Court of Appeal (Criminal Division) in 1999 that in circumstances where there had been an abuse of process but the trial had proceeded none the less, the conviction was unsafe. It is recorded at page 153F that counsel for the Crown submitted that:

"the word 'unsafe' can refer either to guilt or innocence of the crime convicted or it can refer to a miscarriage of justice in the round, including such abuse of process as would have prevented proceedings."

He invited the Court to say that where a defendant should not have been tried but, by reason of an abuse of process he was tried, 'unsafe' should be construed as permitting the Court to quash the conviction. This is what the Court did.

[21]The Court, after citing judges who had inclined to a different view, came to the conclusion that such an abuse could be a ground for quashing a conviction. It pointed out that this had been the consistent practice of the Court. It stated at page 161:

" for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford Dictionary gives the legal meaning of 'unsafe' as ' likely to constitute a miscarriage of justice'. 'unsafe' bears a broad meaning and one which is apt to embrace abuse of process of the Bennet or any other kind. It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant's conviction quashed."

That reasoning was implicitly approved in a decision which was handed down after the conclusion of argument : R v Lyons and Others

[2002] UKHL 44

paragraphs 21, 79 and 109.

[22]As one would expect, there was no discussion as to compensation. A Miscarriage of Justice

[23]It is common ground that in ordinary English parlance the phrase miscarriage of justice is wide enough to cover what happened here. That is amply demonstrated from the paragraph just cited above from the decision of the Criminal Division of this Court. However the submission on behalf of the Home Secretary by Mr Philip Sales is that section 133 uses the phrase "miscarriage of justice" only in the sense in which it was used in the ICCPR and that there it is used to denote solely cases where the accused's innocence of the crime is manifest. As I have already indicated, I do not accept the premise upon which this argument is founded. However, I would not accept the conclusion even if I accepted the premise.

[24]Mr Pleming submits that there is no reason to suppose that Parliament did not intend the word to have its normal English meaning which is quite consistent with fulfilling our international obligations even if they are as limited as is asserted on behalf of the Home Secretary. An obligation to give a citizen minimum rights does not preclude giving him greater rights.

[25]Section 133 was considered by this Court (Sir Thomas Bingham MR, Farquharson and Simon Brown LJJ) in R -v- Secretary of State for the Home Department ex parte Bateman & Howse (1994) 7 Admin LR 175. Bateman had been convicted of various offences of conspiracy. His appeal was dismissed. However, on a reference by the Home Secretary under s.17 of the Criminal Appeal Act 1968 his conviction was quashed because certain statements had been wrongly admitted in evidence at his trial. These were statements from important New Zealand witnesses whose statements were read although he had wanted the witnesses called and cross-examined. He then made a claim for compensation under section 133. He appeared in person. His appeal failed because this court shared the view of the Divisional Court that the decision by the Court of Appeal (Criminal Division) that, in the absence of their authors, the statements should as a matter of law not have been admitted, could not be categorised as "a new or newly discovered fact". What had been 'discovered' was an error of law.

[26]Sir Thomas Bingham MR in an obiter dictum in the course of his judgement at p 182 indicated that Mr Bateman had submitted that the Court of Appeal (Criminal Division) must in 1991 have considered that his conviction amounted to a miscarriage of justice because otherwise it would have applied the proviso to section 2 of the Criminal Appeal Act 1968 as it then stood. [It will be recalled that this enabled the court, notwithstanding that they were of the opinion that the point raised in the appeal might be decided in favour of the appellant, to dismiss the appeal if they considered that no miscarriage of justice had actually occurred.]

[27]Sir Thomas continued:

"Therefore it follows, he says, that he is a victim of a miscarriage of justice and from that it follows that he is entitled to compensation. To deny him compensation is, he argues, to undermine his acquittal and the presumption of innocence which flows from the fact that his convictions have been quashed. I am, for my part, unable to accept that argument although I hasten to assure Mr Bateman that in doing so I have no intention what ever to undermine the effect of the quashing of his convictions. He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for 3½ years when he should not have been convicted or imprisoned at all . The man in the street would regard that as a miscarriage of justice and so would I."

That is the dictum which the Divisional Court in the present case referred to in paragraph 18 and said should not carry the day.

[28]Mr Pleming also cited the decision of the District Court of Appeal, Second District, California (Conrey P.J., James and Shaw JJ) 138 P 71, which was concerned with the question whether something was a miscarriage of justice within the meaning of an article in that State's constitution. Conroy P.J. said:

"The phrase 'miscarriage of justice' does not simply mean that a guilty man has escaped or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused in a given case to a fair trial, conducted substantially according to law, is at the same time the right of all the inhabitants of the country to protection against procedure which might at some time illegally deprive them of life or liberty."

[29]In my judgment in this regard English and American usage do not differ. Further, I see no reason, particularly in a statute which makes no mention of the Covenant in its long title or elsewhere, to give the phrase "miscarriage" a strained construction in order to fit in with what is alleged to be its meaning in the Covenant. Thus I do not regard the meaning in the Covenant as being crucial to the success or failure of this appeal.

[30]For my part, I do not share the view of the Divisional Court expressed in paragraph 24 of the Judgment that: "it simply makes no sense to talk in terms of an abuse of process (consisting of the claimant's illegal deportation to stand trial) showing beyond reasonable doubt that there has been a miscarriage of justice".

[31]The words "beyond reasonable doubt" are neutral as to the meaning of "miscarriage of justice". They tell us something about the standard of proof but nothing about what has to be proved.

[32]As for what "makes sense", I can of course see room for the view that if, so far as the judicial process can tell, Mr Mullen did engage in the dastardly conspiracy of which he stood accused, then imprisonment was an appropriate punishment for him and that he should not be compensated for having been in prison. I see room for a view that in this type of case the appropriate course is to punish those whose conduct led to Mr Mullen being imprisoned and that his release was not called for. Rightly or wrongly, however, that is not the approach of our law as the House of Lords and this court in Mr Mullen's 1999 appeal has made clear. Instead use is made of the concept of a discretionary balance. If the discretionary balance referred to by Simon Brown LJ comes down in favour of quashing Mr Mullen's conviction and letting him out of prison then I see nothing odder about compensating him for having been there. That has the advantage of being consistent with the presumption of innocence which I see as being in play in this type of case. The presumption of innocence

[33]Whether in truth an accused was guilty of the crime charged is something as to which human institutions can err. Witnesses can give erroneous testimony and yet be believed. Situations can arise when erroneous conclusions are drawn from undisputed facts, especially as to a person's state of mind. This is an inescapable fact of human life. What the law can and does provide is that a person is not to be convicted of a crime unless his guilt is proved. The trial and appellate process are designed to reduce to the minimum the occasions when a person is convicted of a crime which he did not commit. There is no doubt that throughout that process the presumption of innocence prevails. The question however arises whether and to what extent that presumption applies outside the criminal process.

[34]The presumption of innocence is contained in Article 14(2) of the ICCPR - the very Article which was the origin of section 133 - which Article provides:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

[35]As is well known, that provision is similar to

Article 6(2) of the European Convention on Human Rights

which provides:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

[36]Mr Pleming stressed that the presumption of innocence which is contained in

Article 6(2) of the European Convention on Human Rights

is not limited to criminal proceedings. He drew our attention the words of the European Commission on Human Rights in Leutscher v The Netherlands [1996] 24 E.H.R.R. 181 at page 187:

" the presumption of innocence is to be observed not only by the criminal court trying a case, but also by other authorities, including courts other than those which are competent to determine a criminal charge."

The ECHR in that case indicated that a refusal of costs to an acquitted accused could raise issues under Article 6(2) if the reasoning amounts in substance to a determination of the guilt of the former accused.

[37]He drew our attention to the unanimous judgment of the ECHR in Lamanna v Austria Application no. 28923/95 delivered on 10 July 2001 which has much in common with the present case. It also concerned a refusal of compensation to an acquitted accused. The relevant Austrian statute provided:

"A right to compensation arises where the injured party has been placed in detention on suspicion of having committed an offence and is subsequently acquitted of the alleged offence and the suspicion that he has committed the offence has been dispelled or the prosecution is excluded on other grounds "

[38]The record of the deliberations of the jury sitting in the assize court in that case revealed that they had acquitted on the basis that there was a doubt and that this had to be resolved in favour of the accused. The Assize court at the same time resolved the question of compensation against the accused holding that the suspicions against the applicant had not been dispelled.

[39]On an appeal within Austria the Constitutional Court held that the statutory provision did not infringe the presumption of innocence in

Article 6(2) of the Convention

[40]The ECHR in paragraph 38 of its decision held that "once an acquittal has become final the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence."

[41]This judgment of the ECHR followed earlier authorities referred to therein and has itself been followed in Weixelbaum v Austria Application No. 33730/96 judgment delivered on 20.12.2001. Conclusion

[42]In summary therefore I consider that: The ICCPR provides for compensation in a case like the present as the travaux préparatoires indicate; Even if that is wrong, the ordinary use of English indicates that the phrase 'miscarriage of justice' is wide enough to embrace circumstances such as the present; There is nothing to prevent Parliament when giving effect to the United Kingdom's international obligations from giving the citizen more rights than those obligations require that he be given; In a case where this court has quashed a conviction the presumption of innocence requires that Acts of Parliament are to be interpreted on the basis that it is not intended that the state should proceed on the basis that a wrongly convicted man is guilty. Had Parliament intended that compensation should only be available to those who could prove themselves innocent it would have said so clearly. In the present case there is not even such an implication.

[43]I therefore respectfully differ from the Divisional Court. Our criminal law system, like that of most other States, does not provide for proof of innocence. I do not consider that Parliament intended proof of innocence to be a pre-requisite of entitlement to compensation.

[44]I would therefore allow the appeal on the basis that Mr Mullen is entitled to compensation under s.133. In those circumstances it is unnecessary to consider his arguments on discretionary compensation.

Lord Justice Rix :

[45]I agree. Mr

Justice Pumfrey :

[46]I also agree.

ORDER

Appeal allowed; appellant's costs of claim and appeal, including the application for permision to appeal, be subject to detailed assesment, if not agreed, and to be paid by the Respondent to the Appellant; Appellant's costs to be taxed in accordance with regulations 107 of the Civil Legal Aid (General) Regulations 1989; Application for permission to appeal to House Of Lords allowed. (Order does not form part of the approved judgment)

Cited in 1 later judgment

Regina v. Secretary of State for the Home Department (Appellant) ex parte Mullen (Respondent) 2004