“on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”
“There are no set criteria for determining whether the threshold of serious default has been met (this would be inappropriate for what is, in essence, a discretionary policy and any criteria might be construed as fettering that discretion). 10. But there are a number of considerations which would have a bearing on the decision: the significance of the alleged default in relation to the case (sourced from comments by the judge at voire dire or during hearing; Court of Appeal judgments; CPS; police or other public authority): the status of the alleged default (i.e. whether it has been investigated and a reasonable explanation given or whether it can ever be substantiated); what evidence exists to suggest that the default was deliberate or negligent; whether those who committed the alleged default would have known the likely impact of their actions and it is reasonable for those involved to have been aware of this (e.g. did regulations exist which they should have known about etc.); the cumulative effect of the alleged action – whether it is one devastating impact or the combined effect of a number of incidents. In short, it is the context of the alleged default in relation to the case as a whole which is often critical to the decision; something which is considered exceptional in one case might not be so exceptional in another. 11. If serious default is not alleged or established, consideration is given to whether the applicant has been completely exonerated within the terms of the statement. Complete exoneration has been construed as covering those rare cases where it is conclusively established that the accused person did not commit the crime. Acquittal of an offence in itself has not been construed as complete exoneration – but more generally as reflecting the operation of the due process of law. Under the 1985 statement, compensation is not paid ‘simply because at trial or on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.’ 12. Generally, exceptional circumstances are recognised when seen rather than defined in advance, and the 1985 statement has provided a reasonably wide discretion. The standard applied in considering ex-gratia cases has been very high and the number of payments made consequently small. The vast majority of ex-gratia applications have not met the terms of the 1985 statement and have been refused.” the significance of the alleged default in relation to the case (sourced from comments by the judge at voire dire or during hearing; Court of Appeal judgments; CPS; police or other public authority): the status of the alleged default (i.e. whether it has been investigated and a reasonable explanation given or whether it can ever be substantiated); what evidence exists to suggest that the default was deliberate or negligent; whether those who committed the alleged default would have known the likely impact of their actions and it is reasonable for those involved to have been aware of this (e.g. did regulations exist which they should have known about etc.); the cumulative effect of the alleged action – whether it is one devastating impact or the combined effect of a number of incidents. In short, it is the context of the alleged default in relation to the case as a whole which is often critical to the decision; something which is considered exceptional in one case might not be so exceptional in another. 11. If serious default is not alleged or established, consideration is given to whether the applicant has been completely exonerated within the terms of the statement. Complete exoneration has been construed as covering those rare cases where it is conclusively established that the accused person did not commit the crime. Acquittal of an offence in itself has not been construed as complete exoneration – but more generally as reflecting the operation of the due process of law. Under the 1985 statement, compensation is not paid ‘simply because at trial or on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.’ 12. Generally, exceptional circumstances are recognised when seen rather than defined in advance, and the 1985 statement has provided a reasonably wide discretion. The standard applied in considering ex-gratia cases has been very high and the number of payments made consequently small. The vast majority of ex-gratia applications have not met the terms of the 1985 statement and have been refused.”
“It is important to bear in mind that serious default and complete exoneration are only examples of ‘exceptional circumstances’ in which compensation might be paid. The Home Secretary’s discretion under the 1985 statement is effectively unlimited and, even if neither of these examples apply, there may still be other circumstances which, taken together or separately, are sufficiently exceptional to justify payment. In practice, cases where ex-gratia compensation is paid on grounds other than serious default or complete exoneration will be very rare. In the very few cases where other exceptional circumstances have been identified, there has generally been a combination of factors which individually would not have triggered a payment but which collectively tip the balance in favour of payment (e.g. a default that would not, on its own, be regarded as sufficiently serious to merit a payment, coupled with facts which tend to, but do not completely, exonerate the applicant). The circumstances of each case should therefore be examined as a whole, as well as against the specific examples.”
“As indicated above, the Divisional Court said in Garner that it would be ‘a very rare case indeed where judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the statement requires’ (See also paragraph 40a.) Subsequently, in Tawfick, it said that ‘ a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances’. Beyond these remarks (and the fact the judge’s conduct in Tawfick was deemed to be ‘wholly exceptional’), there is little to guide us in determining what sort of judicial error might be ‘of such quality as to give rise to exceptional circumstances’. Neither can we, in considering the judicial errors that have occurred in individual cases, apply any fixed criteria (because to do so could be to fetter the Secretary of State’s discretion). But particular attention should be paid to anything that the Court of Appeal said about the nature and effect of the (alleged) judicial error. It is the effect of the error on the trial that is relevant here rather than the effect in the sense that it resulted in a conviction; whenever a conviction is quashed on the basis of one or more judicial errors, those errors can be said to have resulted in the original conviction, so this cannot be regarded as an exceptional factor. Essentially, as with serious default, it is the nature of the error rather than its consequences that determines whether it constitutes exceptional circumstances.”
“In short, and whilst we can to some extent be guided by these two precedents, each case is considered on its individual merits and, as with serious default, it does not follow that a particular judicial error that is considered exceptional in the context of one case will necessarily be considered so serious in the context of another.”
“In considering whether there was judicial error or misconduct amounting to exceptional circumstances, the focus of our attention will almost invariably be judicial error or misconduct on the basis of which the Court of Appeal quashed the conviction (and which could thus be said to have ‘caused a period to be spent in custody’). However, the judgment of the Court of Appeal does not limit the considerations that the Secretary of State can take into account in determining whether or not to make an ex-gratia payment and to confine ourselves to considering only those errors that have been established as such by the Court of Appeal could be to fetter the Secretary of State’s discretion. Thus, consideration should also be given (if relied upon by the applicant) to alleged judicial errors that were not considered by the Court of Appeal. However, in the absence of any judicial or quasi-judicial findings or agreement on such errors, it is unlikely that there will be sufficient grounds upon which the Secretary of State could be satisfied that they either contributed to the conviction or could amount to or contribute to exceptional circumstances.”
“The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.”
“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”
“It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts ‘fall within the parliamentary intention’ (see Royal College of Nursingof the UK v Dept of Health and Social Security[1981] 1 All ER 545 at 565,[1981] AC 800 at 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word ‘family’ to have a narrow meaning for all time, it would be a court’s duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court’s duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament’s function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation.”
“For the purposes of the cases with which the Court is now concerned, the term ‘public authority’ hardly seems apt to apply either to a judge, or to a parliamentary draftsmen, or indeed to a member of the Crown Prosecution Service, or prosecuting counsel. It looks as though the Home Secretary when enunciating his policy may have been intending to refer to authorities like the police responsible for initiating or maintaining prosecutions, and to express his intention to pay compensation for deliberate wrongdoing on their part.”
“The question is whether his announcement of his policy in the House of Commons in 1985 and the subsequent implementation of it had given rise to a legitimate expectation to which in the cases now before the Court the Home Secretary did not measure up because he was in breach of his duty to act fairly in applying that policy.”
“The respondent has, it seems to us, invariably proceeded on the basis that a judge is not a public authority within the first limb. That approach is correct as far as it goes.”
“Miss Dinah Rose, on behalf of Thompson, in submissions adopted by Counsel on behalf of all the other applicants, accepted that the Secretary of State is entitled to rely on authorities, which also bind this Court, which hold that a judge is not a public authority whose serious default can give rise to compensation under the first part of the statement …”
“At the outset of the appeal the Court, without hearing submissions on the length of the sentence, stated that in the circumstances it considered that the sentence that it imposed is excessive and disproportionate to the appellant’s role in the offences.”
“It will, no doubt, be a very rare case indeed where a judicial misconduct has caused a period to be spent in custody and where the misconduct is of the exceptional nature which the second limb of the Statement requires. It will, as Sir Thomas Bingham MR made claim in ex parte Bateman and Howse, be an even rarer occasion in which the Court will interfere with the Secretary of State’s evaluative judgment in this respect.”
“I accept Mr Keith’s [counsel for the SSHD] submission that not every error by a judge be considered exceptional. The Divisional court in Garner was concerned to emphasise that a mere case of judicial error, such as a mistake in a summing up or in a ruling as to admissibility, would not constitute exceptional circumstances. …It is necessary to concentrate upon the actions of the judge and to decide whether they amount to exceptional circumstances.”
“Mr Keith contends that the Secretary of State’s conclusion of the conduct of the judge did not amount to exceptional circumstances was within the range of reasonable responses to the test provided in the Scheme. I disagree. The attack by the judge on the integrity of the defendant in open court in front of the jury was, to my mind, wholly exceptional. The attack was advanced on more than one occasion. The judge accused the defendant of hoodwinking the jury and of trickery. Although the judge had been provoked, the Court of Appeal did not regard those observations as excusable. They were likely to have led the jury to regard the defendant as a liar and a cheat. These observations, it must be recalled, were made in the context of allegations of dishonesty. Moreover it is important to recall that the defendant was acting in person and was thus without any protection. As he complained at the time, he was humiliated by the interventions of the judge directed against him.”
“The additional argument that the judge failed properly to direct the jury as to the Crown’s case could not have amounted to an exceptional case … .”
“Having chosen to allege that the capacitors were for nuclear use, the prosecution had to prove that specific purpose if they were to satisfy the jurors on the first part of the case. That was fully and properly accepted by the Crown in the appeal. Mr Moses conceded that if the jury was directed or left with the impression that it could convict on the basis that the capacitors were especially designed for military use generally, then the summing up was materially defective. He further conceded that such a defect could not be cured by the application of the proviso tos.2 of the Criminal Appeal Act 1968 . The evidence during the trial and the lengthy arguments addressed to the jury by counsel, were directed at the case put forward by the prosecution that the capacitors had been designed for nuclear use since the Crown had nailed their colours to the mast, the defence was emboldened to call expert evidence, in particular for Mr Tilford, that the capacitors could be used in flash units for photographing explosives and ballistics. If the photography was of military ballistics, the capacitors could be said to be for military use … and rendering their export unlawful.”
“This passage in our view exposed the appellants to a significant risk of being convicted on a basis different from that on which the case had been fought.”
“Nowhere in the summing up did the judge tell the jury that the prosecution had to prove that these capacitors were designed for use in nuclear bombs unless they were sure that they must acquit. On the contrary there were, as we have shown, a number of passages suggesting design for some, any, military use would suffice. There was in the circumstances a material misdirection and since it is conceded that the proviso cannot be applied, we concluded that this appeal must be allowed and the conviction must be quashed.”
“Aside from the misdirection, which it is accepted was fundamental to the case, there were no other adverse findings in relation to the judge’s overall conduct of the case and no other strong criticism of his summing up. There is certainly no evidence that the Court of Appeal questioned the judge’s integrity and the Secretary of State cannot find any support for your claim of ‘gross judicial misconduct’. He does not accept your allegation that the trial judge deliberately misdirected the jury nor that he was negligent in his approach.”
“However, the nature of the judge’s error was not so gross or exceptional as to fall within the second limb of the compensation scheme.”
“He has concluded that whilst the Court of Appeal considered that a clear direction was needed in this case, the error in this case is not of the order of a very rare judicial error that might constitute exceptional circumstances.”
“The only reasonable inference which can be drawn from their silence is that they saw a better prospect of a conviction of the broader basis which overrode their previous consideration of the unfairness and injustice to the applicants [Daghir and Another] on the broader basis.”
“It is to be inferred that the reason why Customs did not seek to instruct counsel to correct the learned judge in what was such fundamental and obvious misdirection ... (such that the Court of Appeal quashed the claimant’s conviction on that ground alone without applying the proviso), was that Customs believed that a conviction ... [was] necessary for the reasons set out above. ... It was better for customs to obtain a conviction and an exemplary sentence at any cost and lose on appeal because of judicial error than not to obtain a conviction and exemplary sentence at all.”
“The summing up was delivered by an extremely experienced judge: It did not seem to me appropriate to seek to correct the way in which he summed the case up.”
“I remember quite clearly that several weeks of the trial were devoted to dealing with a substantial amount of expert evidence in relation to the potential use of the capacitors. I also recollect that during my closing speech to the jury, I spent a great deal of time focussing on whether the prosecution had made out a case based on specific nuclear use. It was therefore rather surprising to me when His Honour Judge Denison summed up to the jury that any military use would do. Such a direction was fundamentally and clearly inconsistent with the basis on which the case had been conducted throughout the trial that only special design for nuclear use would do. In view of the above, it seemed His Honour Judge Dennison had decided to take a particular view of the case. As defence counsel, I did not see that it was my duty to try to correct such a fundamental error of law.”
“This allegation of deliberate or negligent failure by HMCE through prosecuting Counsel to correct the misdirection of the trial judge is rejected by HMCE. The Secretary of State understands that this allegation was dealt with in the interlocutory proceedings in the civil case and struck out. You will know that neither HMCE, nor their appointed independent practising barristers considered the judge’s summing up as a whole to be defective, because there were constant references to the evidence relating to special design for nuclear use. The Secretary of State is not satisfied that serious default is established. Your concerns about Counsel’s failure to correct the trial judge will be addressed below under the second limb.”
“It was alleged against the appellant that, knowing or believing that the four hundred thousand pounds had been stolen from PPI [Polly Peck International] by Mr Nadir, she disposed of or assisted in the disposal of the four hundred thousand pounds by arranging for it to be sent from Switzerland to England.”
“I could not believe that somebody like Mr Asil Nadir would need to steal money or would involve me in a dishonest transaction” (page 42). The Court went on: “Whilst it is true that the direction as a whole is couched in subjective terms, we think it is open to misinterpretation. The appellant has said that she could not believe the money was stolen in spite of all the circumstances of suspicion suggested to her. Although it might have been obvious to others, it was not to her because of her trust and confidence in the integrity of Mr Nadir. We think the form of the directions may have left the jury with the impression that the appellant was guilty even though in her mind she could not accept that the goods were stolen. Thus the jury may have concluded that the appellant was guilty if they were satisfied that there were circumstances of great suspicion from which the only conclusion which could reasonably be drawn was that the goods were stolen but which the appellant because of her faith in Mr Nadir could not bring herself to believe so that her eyes had been closed to what was obvious.”
“… It seems to us that [the trial judge] ought to have made it clear to them that they had to be satisfied that the appellant actually believed that the money was stolen.”
“Mrs Forsyth contends that the errors/conduct of the judge fell well short of expected standards of judicial competency generally and particularly concerning several crucial issues by a very senior High Court judge in an extremely important fraud case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly conducting serious fraud trials, and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case.”
“You contend that the conduct of the trial judge in Mrs Forsyth’s case should necessarily be classified as exceptional in the circumstances and that the errors/conduct of the judge fell well short of the expected standards of judicial competency generally and particularly concerning several crucial issues by a very experienced Senior High Court judge and rely on Bentley, Tawfick, Garner and Roberts. We have considered whether the judge’s errors in your clients’ case constitute exceptional circumstance. Judicial error is one of the most common grounds on which convictions are overturned on appeal so the mere fact of there being a judicial error which renders a conviction unsafe will not, of itself, give rise to exceptional circumstances. The Divisional Courts said in Garner & Others (1999) that it would be “a very rare case indeed” where judicial misconduct … is of the exceptional nature which the second limb of the statement requires”
‘In general, once it is shown that there is difficulty in obtaining the attendance of witnesses abroad whose evidence is relevant to the defence, we consider the Court should lean in favour of permitting the evidence to be given in this way though in particular cases there may be reasons to refuse it. Even if on reviewing the exercise of the judge’s discretion we had concluded that the application should have been allowed, we would have had to consider whether the evidence denied to [Mrs Forsyth] was so significant that her conviction was unsafe’
“It seems to us that the prosecution having nailed their colours very firmly to the mast, it would at this stage by unfair to attempt to redraw the indictment. We note both that no such application was made or suggestion advanced at the first hearing of the appeal, and also that counsel for the Crown has advanced this possibility with very muted vigour today.”
“We observe that they would in our judgment stand a poor chance of succeeding on their own.”
“As it is, the appellant may well consider himself in the event somewhat fortunate, but in our judgment the conviction is as it stands unsafe. We do not think it right to substitute an alternative conviction.”
“Mr Dimond submits that there were serious judicial errors because the trial judge blinded himself to the obvious and made a fundamental error in wrongly ruling that the effect of the December 1992 “Bail Variation Hearing” was to re-impose on Nadir limited conditions of bail. Even if the trial judge was acting from the best of motives (which has to be open to question) his approach was so mistaken that his approach amounted to exceptional judicial error. In the alternative, Mr Dimond submits that there was serious judicial misconduct in that in order to secure his conviction, the trial judge in an attempt to circumvent the ruling in ex parte Guney … knowingly devised a pure fiction that the effect of Mr Nadir’s application to vary his bail at the hearing on 19 December was to re-impose on Nadir limited conditions of bail restricting his movement from that date.”
“Mr Dimond submits that the error/conduct of the judge was serious and fell well short of expected standards of judicial competency generally and particularly by a very experienced senior judge in a very important case. To say otherwise, would not say a great deal about the standards of judicial competency in this country, particularly in conducting an important trial and would be a sad reflection on our justice system. It would amount to saying that it is acceptable for a senior member of the judiciary to behave in such a way in such a case.”
“the artifice of a re-grant of bail on the December 1992 hearing in order to enable a conviction to be achieved.”
“… The trial judge strove so hard to create a fiction and a degree of artificiality to ensure a conviction, which, from the severity of the sentence, it would appear, that he considered to be well merited.”