Regina (On the application of Nicholas Mullen) v The Secretary of State for the Home Department [2002] EWHC 230 (Admin)

IN THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - ADMINISTRATIVE COURT)
[2002] EWHC 230 (Admin)Case No Case No: CO/2285/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
Regina (On the application of Nicholas Mullen)The Secretary of State for the Home Department
Before
Lord Justice Simon BrownMr Justice Scott BakerMiss C Lloyd-Jacob (instructed by Messrs Christian Fisher) for the ClaimantP Sales Esq & H Keith Esq (instructed by The Treasury Solicitor) for the RespondentDate 21 February 2002

Lord Justice Simon Brown:

Introduction

[1]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.[2]Leave to appeal against conviction out of time was granted on 19 th January 1998. On 4 th February 1999, after the claimant had been in prison for ten years, the Court of Appeal allowed his appeal. 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. The claimant’s conviction was accordingly to be regarded as “unsafe” notwithstanding that there was “no challenge to the propriety of the outcome of the trial itself”. The Court of Appeal’s judgment is reported at [1999] 2 Cr App R 143 .[3]Following the claimant’s release, his solicitors applied on his behalf for compensation pursuant to section 133 of the Criminal Justice Act 1988 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 Secretary of State refused to pay compensation on either basis.[4]Before the court now is the claimant’s challenge to both limbs of that decision. In addition, he seeks a declaration that section 133 is incompatible with Article 6 of the European Convention on Human Rights.[5]Section 133, so far as presently material, provides:
“(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.

(a) on an appeal out of time; …”

[6]Two issues arise out of these provisions: first, on the proper construction and application of section 133(1) was the quashing of this claimant’s conviction because of the newly discovered fact as to the unlawfulness of his deportation to stand trial a quashing “on the ground that [this] fact show[ed] beyond reasonable doubt that there has been a miscarriage of justice”? Secondly, is the requirement in Article 6(1) of the Convention that “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law” breached by the stipulation under section 133(3) that an claimant’s right to compensation “shall be determined by the Secretary of State”?[7]A third issue arises out of the claim for an ex gratia payment. The 1985 statement indicates two broad categories of case in which the Secretary of State is prepared to pay ex gratia compensation to a person who has spent time in custody “following a wrongful conviction or charge”. These are first, where this “ has resulted from serious default on the part of a member of a police force or of some other public authority”; secondly, where there are other exceptional circumstances, in particular the emergence at trial or on appeal within time of facts which “completely exonerate the accused person”.[8]The Secretary of State accepted that this claimant’s case falls within the first of those two categories but, having regard to its exceptional circumstances, in particular the fact that the claimant was “properly convicted”, he thought it right to depart from his usual policy and decided not to make an ex gratia payment. He concluded that to do so would be “an affront to justice”. Was the Secretary of State entitled to depart from his policy in this way? That is the third issue which arises on this application.[9]With that brief introduction let me turn now to the first and principal issue arising: do the circumstances of this case give rise to a statutory right to compensation under section 133 of the 1998 Act? I shall discuss this issue under the heading “Miscarriage of Justice”. Miscarriage of Justice[10]In considering the rival arguments under this head it is essential to bear in mind the precise basis upon which the claimant’s appeal came to be allowed. As already indicated, this was not because the Court had any doubts as to the correctness of the jury’s verdict, but rather because it regarded the trial as one which ought not to have taken place at all. Let me quote the relevant passages from the judgement. First, as to the facts: “In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but were also acting in breach of public international law.” (156D-E).[11]Next, as to the propriety of the conviction: “No challenge is sought to be made to the conduct of the trial itself and the appeal has proceeded on the basis that, if it was fair to try him, the appellant was properly convicted.” (145B) “… the appellant, as he now concedes, was properly convicted …” (154F-G) Although the claimant has subsequently disputed making any concession to that effect, the plain fact is that no argument was ever advanced that he was not in fact guilty of the offence charged against him. “… there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself …” (162A-B)[12]As to abuse of process, the basis upon which the Court allowed the appeal, the following passages in the judgment are important: “This Court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the appellant in the manner which has been described, represents, in the view of this Court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy, to which, as appears from Bennett and Latif , very considerable weight must be attached.” (156F-157A)[13]The reference there to the “discretionary exercise” was a reference back to R -v- Latif [1996] 2 Cr App R 92 where Lord Steyn at p101 said this:
“… it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R -v- Horseferry Road Magistrates’ Court ex p Bennett (1994) 98 Cr App R 114. Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place … the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impressing that the court will adopt the approach that the end justifies any means.”
[14]I return now to the Court’s judgment in Mullen : “… certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.” (155A) “… the discretion has to be exercised on the basis that, but for the unlawful manner of his deportation, he would not have been in this country to be prosecuted when he was, and there was a real prospect that he would never have been brought to this country at all.” (157E) “… we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed. Inasmuch as that discretionary exercise now falls to be carried out by this Court, we conclude that, by reason of this abuse of process, the prosecution and therefore the conviction of the appellant were unlawful.” (157F-G)[15]The important point of principle established in Mullen was, of course, that the meaning of “unsafe” in section 2 of the Criminal Appeal Act, 1968 (as amended by section 2 of the Criminal Appeal Act, 1995) was broad enough to permit the quashing of a conviction on the sole ground that it followed upon an abuse of process prior to trial.[16]Those being the circumstances in which the claimant’s conviction came to be quashed, his case on the present application, skilfully and resolutely advanced by Miss Lloyd-Jacob, can now be summarised as follows: the claimant’s conviction was no less a miscarriage of justice because it was consequent upon a trial which ought not to have taken place at all than had he been rightly tried but wrongly convicted. That this is so, indeed, Miss Lloyd-Jacob submits, is apparent from other passages in the Court’s judgment in Mullen . Before section 2 of the 1968 Act was amended, it included the proviso that an appeal might be dismissed if no miscarriage of justice had actually occurred. At page 154 the Court summarised the views expressed by Sir John Smith QC in an article in 1995 Crim LR 920 to the effect that the 1995 Act had had no substantive effect and the ultimate question of whether there has been a miscarriage of justice is the same as whether the conviction is unsafe:
“The effect of the amendment is simply to concentrate the mind on the real issue in every appeal from the outset.”
[17]At page 161 the Court returned to the point and concluded:
“… in our judgment, 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’. Sir John Smith’s article to which we have referred does not deal with unsafe in relation to abuse …. But, for the reasons which we have given, we agree with his 1995 conclusion that ‘unsafe’ bears a broad meaning and one which is apt to embrace abuse of process of the Bennett or any other kind.”
[18]Whilst, therefore, as the respondent points out, the Court of Appeal in Mullen was not required directly to decide whether the claimant’s conviction constituted a miscarriage of justice but rather, under the law as it now stands, whether it was “unsafe”, inferentially they appear to have concluded that it was a miscarriage. This being so, the argument runs, there can be no sound reason for ascribing a different meaning to the expression “miscarriage of justice” where it appears in section 133(1) of the 1988 Act. Such a conclusion is suggested also by the decision of the Court of Appeal in R -v- Secretary of State for the Home Department ex parte Bateman & Howse 7 AdminLR 174. Bateman had been convicted of various offences of conspiracy. On appeal out of time his conviction was quashed because certain statements had been wrongly admitted in evidence at trial. These were statements from important New Zealand witnesses whom he had wanted called and cross-examined. Although his claim for compensation under section 133 failed, it failed only because the wrongful admission of evidence was held not to be “a new or newly discovered fact”. Sir Thomas Bingham MR in the course of his judgment at p 182 said this:
“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.”
[19]The respondent’s contrary argument 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 and accordingly the term “miscarriage of justice” in section 133 bears the same meaning as in Article 14(6) of that 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]Otherwise 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, 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 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 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 respondent 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 Mullen itself) show, where, as here, there has been an 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 Latif ) or “an affront to justice” (as Auld LJ put in an unreported decision also cited in Mullen ). That balance is not struck “beyond reasonable doubt”: the use of that expression of itself implies that the appellant must be shown to have been erroneously convicted rather than subject to an unlawful process.[25]In my judgement the respondent’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. It preferred the latter. True, it had “no doubt” that the balance came down “decisively” in the appellant’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 judgment 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 judgment, 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, the word unsafe “can refer to a miscarriage of justice in the round, including such abuse of process as would have prevented proceedings” (p153F-G), that is not the sense in which the expression miscarriage of justice is used in section 133. The Court of Appeal in Bateman & Howse (of which I was a member) was simply not required to address the point now arising: both appeals there failed on other grounds. The Master of the Rolls’ dictum quoted in paragraph 18 above cannot carry the day. This principal ground of challenge must in my judgment fail.[27]The second and third issues I can deal with altogether more briefly. Article 6[28]That the Secretary of State is not “an independent and impartial tribunal” when determining under section 133(3) an application for compensation made under section 133(2) is plain and indisputable. His decision is, however, as this and other cases show, subject to the court’s supervisory jurisdiction. Is this jurisdiction sufficient to comply with Article 6(1)? That question, the Strasbourg jurisprudence establishes, falls to be answered on the facts of the particular case in which it arises - see, for example, paragraph 45 of the ECtHR’s judgment in Bryan -v- United Kingdom (1996) 21 EHRR 342 . As the Court there said, in assessing the sufficiency of the review, one must have regard amongst other things to “the content of the dispute, including the desired and actual grounds of appeal”.[29]The dispute in the present case is simply one of law: what is the true construction of section 133(1)? What in this context is the meaning of the expression “miscarriage of justice”? All the relevant facts of the case were decided on the criminal appeal. In applying the statute the Secretary of State had no facts to find and no judgment to make. His decision turned entirely upon his understanding of the section, and as to this he was either right or wrong. If he was wrong, his decision could be challenged and corrected by judicial review. There can be no question of the supervisory jurisdiction providing an insufficient power of review in a case like the present.[30]As Scott Baker J pointed out in argument, however, one can well envisage section 133 claims in which the Secretary of State may have to reach his own factual judgment - if, for example, the prosecution were to concede the appeal and the Court of Appeal itself, therefore, not to need to adjudicate upon the circumstances of the case. Were the Secretary of State in those circumstances to refuse compensation and a challenge to ensue, the question raised today could theoretically arise again. To my mind, however, the problem realistically would not be one of the compatibility of section 133(3) with Article 6 but rather as to the intensity of review appropriate on such a judicial review application. As the recent Court of Appeal decision in R (Wilkinson) -v- Broadmoor Special Hospital Authority [2002] 1 WLR 419 amply demonstrates, the Court on judicial review can and will if necessary assess any relevant facts for itself even to the extent of ordering the attendance of witnesses for cross-examination. Ex gratia compensation[31]Miss Lloyd-Jacob advances two submissions with regard to the Secretary of State’s refusal to make an ex gratia payment despite his acknowledging that the case falls within one of the categories in which such payments are ordinarily made. Her first and wider submission is that where, as here, the Secretary of State has announced his policy and thus created a general expectation that he will follow it, it is necessarily unfair and impermissible for him to depart from it in any circumstances. Her second and narrower contention is that it was irrational of the Secretary of State to refuse payment here.[32]The first argument is to my mind impossible. There are, of course, cases in which substantive legitimate expectations have been built up where nowadays public authorities will be required to honour their statements of policy or intention. All this is exhaustively and authoritatively discussed by the Court of Appeal in R -v- North & East Devon Health Authority (ex parte Coughlan) [2001] QB 213 at paragraphs 51 - 82 inclusive. As, however, is there made plain, the question for the Court is ultimately one of reasonableness and fairness. Would a departure from policy represent an abuse of power? That is a question to be asked in the circumstances of the particular case. It cannot in my judgment be suggested that the Secretary of State can never in any circumstances depart from his stated policy with regard to the payment of ex gratia compensation. He should, of course, give the person concerned an opportunity to say why in his particular case the policy should be applied rather than disapplied. But no problem of that sort arises here. The opportunity was given and taken. The Secretary of State was simply not persuaded.[33]What, then, of the claimant’s narrower contention that it was irrational and unfair for the Secretary of State to depart from his stated policy in the particular circumstances of this case? Miss Lloyd-Jacob’s argument in this regard centres upon the particular reason given by the Secretary of State for departing from his usual policy here, namely on the ground that it would be “an affront to justice” to compensate the claimant financially for the abuse of process. This, she submits, is quite inconsistent with the Court of Appeal’s judgment by which, it will be remembered, the claimant’s conviction was itself quashed as “an affront to justice”. Powerful though at first blush the argument appears, in my judgment it is not on analysis sustainable. True it is that, but for the abuse of process in which police officers and other representatives of public authority were involved, this claimant might never have stood trial. True, too, his time in custody was greatly extended by the Crown’s failure to make proper disclosure of the documents which ultimately established that abuse of process. But it is surely one thing to hold that it is in those circumstances an affront to justice that the claimant should remain convicted and imprisoned; quite another to say that justice requires him also to be compensated for his years in custody.[34]For my part I see no inconsistency between the Court of Appeal’s quashing of the claimant’s conviction as an affront to justice and the Secretary of State’s refusal to compensate him by reference to the same principle. What price should be paid to vindicate the rule of law and the integrity of the criminal justice system? The Court of Appeal thought that these interests required the claimant’s appeal to be allowed: his conviction had been secured at too high a price. But by no means does it follow that the claimant should also be financially compensated for his loss of liberty.[35]In this connection Mr Sales draws our attention to McCann & Others -v- United Kingdom 91996) 21 EHRR 97, the “Death on the Rock” case. The ECtHR, there, despite by a narrow majority finding Article 2 to have been breached, nevertheless dismissed the applicants’ claim for financial compensation. As stated in paragraph 219 of the judgment:
“… having regard to the fact that the three terrorists suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head.”
[36]The wrongdoing in the present case, just as in McCann , was not all on one side. The applicant is not entitled to be treated for all the world as if he was entirely innocent. In my judgment the Secretary of State was entitled to refuse him an ex gratia payment.[37]I would dismiss this application. Mr

Justice Scott Baker :

[38]Not everyone who is wrongly convicted is entitled to compensation; nor indeed, in the ordinary course of events, are those who are remanded in custody and subsequently acquitted. However parliament has provided in Section 133 of the Criminal Justice Act 1988 the narrowly defined circumstances in which statutory compensation is to be paid. Additionally, the Secretary of State spelt out in 1985 two categories of case where the State would ordinarily pay ex gratia compensation.[39]The first question for the Secretary of State, which was one of law, was whether the claimant qualified for compensation under the statute. It was and is a pure question of construction. In my judgment, for the reasons given by my Lord, he reached the correct answer that the claimant did not qualify.[40]This is not a conclusion that should occasion any surprise bearing in mind there has never been any challenge to the integrity of the claimant’s trial as such. He was properly convicted on the evidence. The conviction was set aside because of the circumstances in which he was bought into the country to be tried.[41]Like my Lord I found the argument of Mr Sales as to the true meaning of miscarriage of justice in Section 133 compelling. There was no miscarriage of justice in the sense in which the expression is used in that section. Accordingly the claimant does not qualify for compensation under the statute.[42]Whether or not the Claimant was to be paid compensation under the ex gratia scheme was a matter for the Secretary of State’s judgment. True the claimant qualified under the first category but there is no rule of law that required him to authorise payment in this case. ********************* LORD JUSTICE SIMON BROWN: For the reasons given in the judgment, which has already been handed down, this application fails and is dismissed. Thank you for your helpful note, Miss Lloyd-Jacob, about the typo, which I hope you have put right in the proposed orders, which I doubt are in dispute.PRIVATE  Mr Sheldon, you appear for the respondent. We simply dismiss the application and make an order for detailed assessment of the claimant's costs. Are you content for now with no further order for costs? MR SHELDON: My Lord, our application is for costs, although not to be enforced without the permission of this court. LORD JUSTICE SIMON BROWN: You want a football pool order? MR SHELDON: Exactly. LORD JUSTICE SIMON BROWN: I do not think you can resist that, can you, Miss Lloyd-Jacobs? MISS LLOYD-JACOBS: My Lord, no. LORD JUSTICE SIMON BROWN: Very well, then, we make that order, and we have your helpful written submissions on permission to appeal, Miss Lloyd-Jacobs. If you want to add to them, you may, but I am afraid we have a very clear view at his stage. We do not think this is an appropriate case to go further. Obviously, you can make your application directly to the Court of Appeal but we, for our part, refuse. Thank you very much.

Cited in 2 later judgments