Raissi, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 243 (Admin)

[2007] EWCA Civ 243Case No CO/5091/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22nd February 2007
Before
LORD JUSTICE AULDMR JUSTICE WILKIE
Between
THE QUEEN ON THE APPLICATION OF LOTFI RAISSIClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Edward Fitzgerald QC and Mr Stephen Cragg (instructed by Tuckers) for ClaimantMr Khawar Qureshi QC (instructed by Treasury Solicitor) for RespondentHearing Hearing date: 11 th October 2006
JudgmentAuld LJ :Introduction.
[1]This is a claim by Mr Lotfi Raissi, by permission of Ouseley J given on 17th February 2005, for judicial review of a decision of the Home Secretary rejecting his claim under an ex gratia scheme for payment of compensation to persons whose convictions are quashed on appeal or who, following charge, have not been proceeded against or have been acquitted of crime at trial.[2]The ex gratia scheme, in its original form, was introduced in July 1976 by Mr Roy Jenkins, as Home Secretary, to provide compensation in cases of wrongful conviction. In a written parliamentary answer on 29th July 1976, Hansard (HC Debates) 29 July 1976, cols 328-330 he stated:
“A decision to make an ex gratia payment from public funds does not imply any admission of legal liability; it is not indeed, based on considerations of liability for which there are appropriate remedies at civil law. The payment is offered in recognition of the hardship caused by a wrongful conviction or charge and notwithstanding that the circumstances may give no grounds for a claim to damages.”
[3]In its present form, the ex gratia scheme was introduced and explained by Mr Douglas Hurd, as Home Secretary, in a statement to Parliament on 29th November 1985. In brief, the scheme provides for discretionary payment to those detained in custody following a wrongful conviction or charge resulting from exceptional circumstances, including serious default on the part of a member of a public authority and/or the emergence of facts completely exonerating the detained person. Mr Hurd’s explanatory statement, so far as material, was in the following terms, the two paragraphs of which I have numbered and shall refer to respectively throughout this judgment as paragraphs 1 and 2 of the ex gratia scheme: [1] I remain prepared to pay compensation to people … who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority. [2] There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts that may emerge at trial, or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this I will not, however, be prepared to pay compensation simply because at the 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.”[4]Three years later section 133 of the Criminal Justice Act 1988 established a statutory right to compensation for punishment resulting from conviction where “a new or newly discovered fact shows beyond reasonable doubt that there has been miscarriage of justice”, leaving the Secretary of State to determine on a case by case basis whether the right was established and to an assessor in that event the amount of the compensation. Section 133 did not render the establishment of the right subject to proof of default by the police or any public authority, but required an assessor in determining the amount of compensation to have regard, inter alia, to “the conduct of the investigation and prosecution of the offence”.[5]Section 133, as Lord Steyn pointed out in R (Mullen) v SSHD [2005] 1 AC 1, at paras 5 and 6, was enacted to give effect to the requirement in Article 14(6) of the International Covenant on Civil and Political Rights (“ICCPR”), to provide compensation in cases of wrongful conviction where some new or newly discovered fact shows “conclusively” that there has been a miscarriage of justice”, a provision which matched in substance Article 6 of the European Convention on Human Rights (“ECHR”). However, as Lord Steyn observed in Mullen, at para 45, the tying of statutory compensation under the provision to the emergence post-conviction of a new or newly discovered fact establishing conclusively a miscarriage of justice “demonstrate[s] that the fundamental right under article 14(6) was unquestionably narrowly circumscribed”. Section 133 left untouched the remainder of the ex gratia scheme, namely forms of harm to a person, including detention and all that goes with it, resulting from miscarriage of justice in the form of prosecution on a criminal charge later withdrawn before or at trial or on which he is acquitted at trial or on appeal within time.[6]Whilst not determinative on the issue of the reach and interpretation of the ex gratia scheme, it is informative on those issues to note the intention and understanding of the Home Secretary of the day in April 2003 when issuing guidance on it to the Home Department’s claims assessment team under the heading “Practice in Administering the statutory and ex-gratia schemes”. The guidance was primarily for internal purposes, but it was available to members of the public on request. Paragraphs 23 and 24, under the heading “The Ex-gratia Scheme”, read:
“23. Ex gratia payments are, by their very nature, exceptional, but the then Home Secretary’s statement of 29 November 1985 provided some guidance as to the circumstances in which payment of compensation might be appropriate. In all instances, the applicant must have spent time in custody following a wrongful conviction or charge. The ex-gratia scheme is thus broader than the statutory provisions in that it covers wrongful charge as well as wrongful conviction, but narrower in that it only applies when time has been spent in custody. 24. Subject to these pre-requisites, the 1985 statement gives two examples of exceptional circumstance in which the Home Secretary will be prepared to pay ex-gratia compensation to a person who has spent time in custody following a wrongful conviction or charge. These are: a. where he is satisfied that there has been serious default on the part of a member of a police force or of some other public authority resulting in a wrongful conviction or charge; or b. where facts emerge, at trial or on appeal within time, that completely exonerate the accused person All applications which fall to be considered against the terms of the 1985 statement are examined in turn against each of these two examples.”
Paragraph 29, under the heading “Other exceptional circumstances” read:
“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 had 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 fact 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.” a. where he is satisfied that there has been serious default on the part of a member of a police force or of some other public authority resulting in a wrongful conviction or charge; or b. where facts emerge, at trial or on appeal within time, that completely exonerate the accused person All applications which fall to be considered against the terms of the 1985 statement are examined in turn against each of these two examples.”
[7]On the face of it, that guidance is of a piece with the original statement of the scheme, as I have described it in paragraph 3 of this judgment, in providing for discretionary payment to those wrongly detained in custody as a result of wrongful conviction or charge resulting from exceptional circumstances, including serious default on the part of the police or other public authority or the emergence of facts completely exonerating the detained person.[8]Mr Raissi’s claim arises, not from a domestic criminal charge in respect of which he was prosecuted, but from unsuccessful extradition proceedings instituted in this country by the Government of the United States of America, leading to his detention for some four and half months before their dismissal.[9]Mr Raissi maintains that the ex gratia scheme applies to extradition proceedings as well as to criminal prosecutions, since extradition proceedings are akin to a charge and criminal proceedings in this country within the intendment of the scheme. Alternatively, he maintains that there are two limbs to the scheme, under the second of which, in the circumstances of this case, the Home Secretary in the proper exercise of his discretion should have granted him compensation. The first is where there has been a “wrongful … charge … result[ing] from serious default on the part of … some … public authority”, here of the Crown Prosecution Service as the agent of the United States Government. The second is other “exceptional circumstances”, including the emergence of facts in the proceedings that “completely exonerate[d]” him.[10]The Secretary of State maintains that the ex gratia scheme applies only to domestic criminal charges and criminal proceedings, not extradition proceedings, and that, in any event, there is only one consideration or “limb” for him in his application of it, namely whether, in his view, there are “exceptional circumstances” justifying the grant of compensation, which circumstances may include wrongful default on the part of the authorities or the emergence of facts before or at trial that completely exonerate a detained person, neither of which applies here.[11]Ouseley J, when considering the application for permission to claim judicial review, rejected as unarguable the suggestion of default on the part of a public authority, with the result that Mr Raissi could not qualify under paragraph 1 of the ex gratia scheme as a person who had “spent a period in custody following a wrongful … charge … [resulting] from serious default on the part of a member of a police force or of some other public authority”. However, he granted permission on the ground that it was arguable that the scheme applied in the extradition context in respect of a “charge”, namely the “terrorist background”, of which he might be said to have been completely exonerated, so as to qualify as an exceptional circumstance under paragraph 2 of it. He said, at paragraph 13 of his ruling:
“… the principal purpose behind the ex-gratia scheme is to compensate those who have been detained in custody for the loss they have suffered where that has occurred in certain circumstances. If those circumstances are satisfied in the context of extradition, it may be that the scheme is appropriately applied to them. … That is particularly so where, in the circumstances here, it is quite possible that had this been a wholly domestic context, compensation would have been payable.”
[12]He went on to describe the particular circumstances that he had in mind, namely that “the holding charges” against Mr Raissi were not the cause of his detention, but rather “the more serious terrorist background”. He expressed the view that the lack of further material put before extradition judge, Senior District Judge Workman, on that aspect and the affidavit evidence filed on Mr Raissi’s behalf suggested that it was “at least arguable” that the scheme applies to extradition offences and, on the facts, that Mr Raissi should be regarded as completely exonerated of the potential charges and graver context that underlay the detention.

The facts

[13]In outline, Mr Raissi was the subject of extradition proceedings to the United States on the basis of charges of failure to disclose certain prescribed information when seeking from the United States Federal Aviation Authority renewal of his air pilot’s licence. The proceedings were governed by Schedule 1 to the Extradition Act. 1989 (“the 1989 Act”), under which the United States Government was required to establish in the extradition proceedings a prima facie evidential case that the conduct in respect of which it sought Mr Raissi’s extradition was an extradition offence in the sense that, if it had occurred in this country, it would have constituted an offence or offences here. The extradition proceedings were, in the event, unsuccessful. However, in the course of them counsel, instructed by the Crown Prosecution Service as agent for the United States Government, informed the Judge that there was evidence linking him to attacks on the World Trade Centre in New York on 11th September 2001 and that he would imminently be charged with an offence in connection with those attacks. On the strength of that allegation of terrorism, counsel for the United States Government sought, and the court ordered, his remand in custody, where, as I have indicated, he remained for four and half months.[14]In more detail, on 21st September 2001 – only a few days after the World Trade atrocity - the police arrested Mr Raissi on suspicion of his having been concerned in the preparation, instigation or commission of acts of terrorism in connection with it, contrary to section 1 of the Terrorism Act 2000. After a seven day period of questioning in custody at Paddington Green Police Station, during which he made no admissions, the police “de-arrested” him in respect of that matter. However, they immediately re-arrested him on a warrant of arrest issued by the Bow Street Magistrates’ Court pursuant to the United States Government’s request for his extradition for offences of making false statements in an application to the United States Federal Aviation Authority for a medical certificate in support of an application to renew his pilot’s licence. Though eight in number, those alleged offences amounted, in substance, to two accusations of obtaining a medical certificate to fly, the first by falsely failing to disclose a conviction of theft in 1993 and the second by stating that he had not visited a health professional within the previous three years. Removed from the allegation in the background of his involvement in terrorism, they were, on any showing, comparatively trivial matters in respect of which to seek his extradition.[15]On Mr Raissi’s first appearance before the Bow Street Magistrates’ Court, sitting at Belmarsh Prison, on the extradition proceedings on 28th September 2001, and on subsequent appearances there in those proceedings, counsel for the United States Government referred to the extradition “charges” as “holding charges”. He indicated that, in due course, Mr Raissi’s extradition would be sought in respect of a charge of involvement in a conspiracy to murder in relation to the attack on the World Trade Centre, his alleged role having been as “lead instructor” of the four pilots who had hi-jacked planes for the attack. On this first appearance, no application for bail was made on his behalf and he was remanded in custody.[16]There were then a number of further productions of Mr Raissi before the Judge over the next three to four months at which counsel for the United States Government maintained the stance that a terrorism charge was in the offing, but was unable to put any documentary or other material before the Judge in support of it. Eventually, at a hearing on 12th February 2002, the Judge, in the continued absence of any such material, granted Mr Raissi conditional bail, notwithstanding the objection of counsel for the United States Government.[17]At the extradition hearing on 24th April 2002 the Judge discharged Mr Raissi in respect of the accusation of failure to disclose the 1993 conviction, as it was not an extradition offence, since it would not have amounted to an offence in English law by virtue of having become spent at the material time under the Rehabilitation of Offenders Act 1974. He also discharged him in respect of the second accusation, failure to disclose visiting a health professional within the previous three years, finding that, though he had failed to make such disclosure, there was insufficient evidence to show that the deception had been material to the decision to grant the certificate and, therefore, that there was “no prima facie case”. In discharging him, the Judge observed to Mr Raissi’s counsel:
“Your client has appeared before me on several occasions where allegations of involvement in terrorism have been made. I would like to make it clear that I have received no evidence to support that contention.”
[18]Mr Raissi’s solicitors, in a number of written submissions to the Home Secretary, the first being on l5th June 2004, maintained that the extradition proceedings had been for an improper purpose and, therefore, an abuse of process, entitling him to compensation under the “serious default limb” and/or the “exceptional circumstances limb” of the ex gratia scheme for damage to his reputation, loss of liberty, distress and psychiatric injury.[19]The Home Secretary, by three decision-letters, the first on 24th April 2005, the second on 12th July 2005 and the third, on 28th March 2006 after Ouseley J’s grant of partial permission, rejected the claim because, on his view: 1) the ex gratia scheme applied only to time in custody following a wrongful charge under United Kingdom law, not to extradition proceedings, or 2) that if it did apply to extradition proceedings, his claim did not meet the prescribed criteria because i) there was no serious default on the part of the British authorities, whatever the position of the United States authorities, since there had been evidence in respect of the extradition “charges”, albeit insufficient in the end to support them, and ii) he had not been completely exonerated of those “charges”, and/or of the allegation of involvement in terrorism if it constituted a “charge” for the purpose; and 3) in those and any other respects there were no “exceptional circumstances” for the grant of compensation. The issues in the appeal.[20]There are four issues in the appeal: i) whether the ex gratia scheme provides only for detention following a wrongful conviction or charge and then only in exceptional circumstances; ii) whether the scheme applies in the extradition context, in particular whether Mr Raissi satisfies the first requirement described in it as a person who had spent a period in custody, following a wrongful “charge”; iii) if, so, whether he could qualify under the exceptional circumstance mentioned in paragraph 2 of the scheme of emergence of “completely exonerating” facts; and, in any event; iv) whether the Home Secretary’s decision that there were no other exceptional circumstances on which he could exercise his discretion to make a payment was Wednesbury irrational or otherwise unlawful.[21]Before examining each of those issues, I shall consider the way in which the courts should interpret and apply the ex gratia scheme, set out as it is in the form of a statement of ministerial policy. The first consideration is that it is just that, a statement by the Home Secretary of the day, to which his successors have adhered, of what he intends to do. It is not a statute. The second is that it is an ex gratia scheme directed to circumstances that the Home Secretary, on a case by case basis, might consider exceptional and, which, on that account and in his discretion, merit payment of compensation from public funds. Given those considerations, whilst decisions of a Home Secretary under the scheme are susceptible to judicial review, both as to matters of general interpretation and individual application, intervention by the courts in either respect should, it seems to me, be highly guarded.[22]For the same reasons, it is not, in my view, an apt field for judicial control by reference to the range of meaning that some notional reasonable reader of the policy might give it, or one that a wrongfully detained person might reasonably expect when first having occasion to read it. Certainly, legitimate expectation is not a sensible route to construing the policy. No consideration arises here as to legitimate expectation in the sense considered by Sedley LJ in The First Secretary of State & Anor v Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520, at para 16:
“… the interpretation of policy is not a matter for the Secretary of State, what a policy means is what it says. Except in the occasional case where a policy has been ambiguously or un-clearly expressed (see R v Derbyshire CCC, ex p Woods [1997] JPL 958), so that its maker has to amplify rather than interpret it, ministers are not entitled to thwart legitimate expectations by putting a strained or unconventional meaning on it.”
[23]As Mr Fitzgerald acknowledged, courts have tended to adopt a more cautious approach to the scope of their interpretative powers in respect of ministerial policy, applying the relatively loose test that they should content themselves to determining, as a matter of law, whether the meaning that the minister puts on it is within the range of meanings that the words of the policy are capable of bearing. This is particularly evident in planning cases, but, in my view, as a matter of logic and good law, it should be of general application: see Horsham DC v Secretary of State for the Environment [1993] 1 PLR 81, per Nolan LJ (as he then was) at 88; R v Derbyshire County Council, ex p Woods [1997] JPL 958, CA, per Brooke LJ at 967-968; and R (Springhall) v London Borough of Richmond upon Thames 24 January 2006 [2006] EWCA Civ 19, [2006] LGR 419, per Auld LJ, at para 7, with whom Moore-Bick LJ and Sir Peter Gibson agreed. The question for the courts when interpreting ministerial policy, in whatever context, is what was the minister’s intention as divined from his statement of policy in its context, not whether some term used or concept referred to in it necessarily falls within a particular legal category, such as suggested here by Mr Fitzgerald, namely whether, in law, extradition proceedings involve a “charge” or “conviction” or are “criminal proceedings”.[24]Perhaps, it is a matter of emphasis, rather than anything else, but my view is that the courts should attempt to look at ministerial policy through the minister’s eyes as at the time when he has articulated it, by reference to the ordinary and natural meaning of the words that he has used in their context, rather than through the eyes of some notional reasonable reader, whether or not one with a newly discovered interest because he has been wrongly detained.[25]All of that is by way of preface to my unease about the approach, recently stated by this Court in two recent authorities in this context, but having as its origin a passage from the judgment of Lawton LJ in 1985 in a criminal injuries compensation case, R v Criminal Injuries Compensation Board, ex p Webb [1987] QB 74, in which he said, at 78:
“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 pronouncement 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 to which he could under the scheme be paid compensation for personal injury caused by a crime of violence.”
[26]That test of “the reasonable and literate man”, which was followed, again in the criminal injuries context in R v Criminal Injuries Compensation Board, see ex p K & Anor [1998] 1 WLR 1458, at 1462, appears to have been adopted as appropriate in this context without question by Hooper J, as he then was, in R (Daghir & Ors) v SSHD [2004] EWHC Admin 243, at para 24, and by Henriques R (Grecian v SSHD [2004] 3 December, CO/5706/02., at para 15. In each case they did so, seemingly acting on the agreement of the parties, and in neither case was there any issue as to the reach of the scheme in circumstances where the detention in question had not followed conviction or a charge or as to whether extradition proceedings could be said to have involved a “charge” for this purpose.[27]In addition, in Daghir Hooper J’s consideration of the matter preceded consideration by the House of Lords of the ex gratia scheme in Mullen and In re McFarland [2004] 1 WLR 1289, AC.And in Grecian neither authority seems to have been drawn to the attention of Henriques J. Mullen is important because of the majority’s view articulated by Lord Bingham of Cornhill, at paragraph 6, that Article 14(6) of the ICCPR, which gave rise to the ex gratia scheme and section 133 of the 1988 Act, had and have no bearing on abuses of executive power which do not result in an unfair trial, and because of Lord Steyn’s observation at paragraph 45 as to the narrow circumscription of the fundamental right of Article 14(6) by section 133 in its part implementation of the original ex gratia scheme (see paragraph 5 above). McFarland is important because it focuses on the intention of the minister at the time of articulating his policy rather than on how his words would or might have been interpreted at a later date in the light of developments in the law. Their Lordships held by a majority (Lord Steyn dissenting on this issue) that a magistrate was not a member of a public authority within the meaning of the scheme since, at the date of the Home Secretary’s statement of it in 1985, judges and magistrates would not have been so regarded. Three of their Lordships in the majority, Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe, appear to have looked at the question as a matter of the intention of Mr Douglas Hurd when enunciating the scheme in 1985 (see paragraphs 13, 15, 44 and 45). Lord Scott of Foscote, the fourth member of the majority, while agreeing with them, went further:
“40. In making ex gratia payments the Home Secretary is disbursing public money. But he is not doing so pursuant to any statutory duty or statutory power. There is no statute to be construed. He is exercising a Crown prerogative… 41. …the scope of the courts’ powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision-making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one. 42. .… The policy, bar irrationality, is for the Secretary of State.”
The majority’s approach appears to me to have much in common with the observation of Lord Slynn, in a different and statutory context when construing in Fitzpatrick v Sterling Housing Association Ltd [1994] 4 All ER 705, at 721,the meaning in the 1977 Rent Act of the word “family” long after its enactment, that the ordinary person test “tended to bedevil this area of the law”.[28]In the result, my view is that courts should allow latitude to a minister to decide, within a reasonable range of meaning of his statement of policy, to what it applies and what it means. And where the minister of the day has issued guidance for his staff and, in addition, has made it available to the public on request, as the Home Secretary did here in his April 2003 (see paragraph 6 above), such guidance as to his intention for the reach and meaning of the policy cannot sensibly be put to one side as it would if proffered as an aid to interpretation of a statutory scheme. It is either a helpful confirmation of the reach and interpretation of the original policy in question or it is an indication by the minister of a change in it. He is entitled to introduce such a change, providing it is not irrational or otherwise unlawful and gives such public or private notice as is necessary or appropriate, especially in the case of an ex gratia and discretionary policy such as this. As I have said, the application of the ex gratia scheme is not by its subject matter and the circumstances in which a claimant first may have recourse to it, a natural area for attack on the grounds of long-term legitimate expectation or inconsistency. A court should only intervene on an issue as to the reach and meaning of a policy where a minister in his application and/or interpretation of it, strays outside the reasonable range of meaning, or where there is an ambiguity, in which considerations of law may or may not point in one direction rather than another, as Brooke LJ suggested in Woods, at 968. Issue 1 – whether the ex gratia scheme applies only to exceptional circumstances of wrongful detention following a criminal conviction or charge[29]Mr Edward Fitzgerald QC, on behalf of Mr Raissi, submitted that “exceptional circumstances, where referred to in the ex gratia scheme, are a free-standing alternative to detention whether or not it follows a wrongful conviction or charge. Thus, he maintained, even if extradition proceedings, such as those here, did not involve a “charge” or could not lead to conviction in our domestic criminal justice system, nevertheless, paragraph 2 of the scheme allowed for a discretionary payment to Mr Raissi because of “exceptional circumstances”. The exceptional circumstances which he suggested arise for consideration were Mr Raissi’s “complete exoneration” of any culpability in the extradition proceedings and/or because those proceedings were based on comparatively trivial holding charges as a cover for detaining him on an uncharged and never evidenced allegations of terrorism. He suggested that “exceptional circumstances” in the scheme were intended to form a broad residual category for cases falling outside the need for a “charge” and “serious default on the part of a member of a … public authority” in paragraph 1 of the scheme.[30]There are two difficulties in that argument.[31]The first is that the whole of the ex gratia scheme is based on the Home Secretary’s acceptance in any individual case that there are exceptional circumstances, of which those mentioned in paragraphs 1 and 2 of it are examples, as this Court held in R v SSHD, ex p Garner & Ors (1999) 11 Admin LR 595. There is clearly scope for others. For example, in Garner the Court held that misconduct of judge, though he is not a public authority within paragraph 2 of the scheme, could nevertheless amount to an exceptional circumstance justifying the payment of compensation.[32]The second difficulty in Mr Fitzgerald’s argument is that the ex gratia scheme, on its plain intention and terms - and as explained in the April 2003 ministerial guidance set out in paragraph 6 above - applies only to detention in custody following a wrongful conviction or charge. There is thus only one “limb” to the scheme. As Mr Khawar Qureshi QC, for the Home Secretary, rhetorically asked in argument, why else does it refer when instancing complete exonerations as a an exceptional circumstance in paragraph 2, to “facts [that] may emerge at trial, or on appeal within time”, and why does it distinguish it from inability “at the trial or on appeal [of] the prosecution to sustain the burden of proof beyond reasonable doubt in relation to the specific charge brought”?[33]In short, as Lord Bingham observed at paragraph 4 of his speech in Mullen:
“It is apparent from their statements that Mr Jenkins and Mr Hurd were addressing the subject of wrongful conviction and charges. … The common factor in …[wrongful conviction] cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.”
[34]For those reasons, I have no doubt that the ex gratia scheme applies only to exceptional circumstances arising out of a wrongful conviction or charge. Issue 2 – whether conduct relied upon as constituting an extradition offence is a “charge” within the meaning of the ex gratia scheme[35]If I am right in concluding that the ex gratia scheme only applies to detention following a wrongful conviction or charge, does initiation and prosecution of extradition proceedings in this country amount to a “charge” for the purpose?[36]Mr Fitzgerald, in submitting that the ex gratia scheme is not confined to domestic criminal prosecutions, but extends to detention arising out extradition proceedings, again took as his starting point Lawton LJ’s “reasonable and literate man” approach in ex p Webb. He maintained that a reasonable and literate person looking at the wording of the scheme would have concluded that extradition proceedings were within its scope. He took the Court to the following words of Lord Steyn in re Ismail [1999] AC 320, at 326G-327A on the meaning of in section 1(1) of the 1989 Act of “a person in the United Kingdom … accused in” the state requesting his extradition, as an indicator of the lack of technicality in this respect:
“… The starting point is that ‘accused’ in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an ‘accused’ person. … one is concerned with the contextual meaning of ‘accused’ in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition. …”
[37]Mr Fitzgerald suggested that in this context, one concerning the liberty of the subject, either the reasonable range of meaning should be somewhat broader than in other contexts or, to the extent that it is a different question, if there is ambiguity about the language, it should be construed so as to include extradition proceedings. The exercise for the Court, he emphasised is not one of Wednesbury review. However, he did not suggest that the ex gratia scheme is unlawful if, on a proper reading, it does not extend to wrongful detention in extradition proceedings.[38]As I have said, I do not regard “the reasonable and literate person” formula as a helpful approach for determining on an objective basis what Mr Hurd had in mind when he formulated, or when his successor applied, his ex gratia scheme in this case. Nor, for the reasons I have given, do I consider it helpful to draw on authority as to statutory interpretation, in this instance as to what is meant by “accused in” the requesting state in section 1(1) of the 1989 Act, when one is considering what the Home Secretary had in mind when introducing the scheme in 1985 or in its application now. As Lord Bingham observed in McFarland, at para 14, the Court’s task “is to consider the meaning of a ministerial statement, not a statutory definition of a different expression.”[39]However, whatever the precise form of the interpretative test, Mr Fitzgerald maintained that the broad and principal purpose of the ex gratia scheme was to compensate those who had been detained in custody in the United Kingdom for the loss they had suffered as a result of a formal and wrongful accusation of crime. Put at its simplest, he said that the state seeking extradition lays the basis for such proceedings by initiating some form of criminal process in its own jurisdiction, and in the extradition proceedings under the 1989 Act. It had to show, prima facie, that the alleged conduct would have constituted an offence in this country if it had occurred here. He referred to the following close parallels between domestic criminal proceedings in which there is a “charge” and extradition proceedings in respect of a person “accused” of an extradition crime. i) the warrant for arrest issued in this country to bring the person whose extradition was issued by a magistrates’ court here; see paragraph 5(1) of Schedule 1 to the 1989 Act; ii) the jurisdiction and powers exercised by the court were “as near as may be as if the prisoner were brought before the court charged with an indictable offence committed in England or Wales”, including the power to grant bail and to remand in custody; see paragraph 6(1) of Schedule 1 to the 1989 Act; However, the statutory right to bail under the Bail Act 1976 does not apply to extradition proceedings, by virtue of section 4(1), when read with section 2(2) the Act. iii) the applicability of various provisions of the Police and Criminal Evidence Act 1984 to extradition proceedings; see R v Governor of Brixton Prison, ex p Levin, [1997] AC 741, in which the House of Lords held that extradition proceedings were “criminal proceedings” for the purpose of that Act. Lord Hoffmann, speaking for their Lordships, said at 746F-747A: “… I think that extradition proceedings are criminal proceedings. They are of course criminal proceedings of a very special kind, but criminal proceedings none the less. … Both case law and the terms of the Extradition Act 1989 point to extradition proceedings being categorised as criminal. First, the cases. In Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] ACT 147 this House approved the decision of the Court of Appeal in Ex parte Alice Woodhall (1888) 20 QBD 832 that the refusal of an application for habeas corpus by a person committed to prison with a view to extradition was a decision in ‘a criminal cause or matter’. It would seem to me to follow a fortiori that the extradition proceedings themselves are criminal proceedings and in Amand’s case Viscount Simon LC said, at p 156, that the cases demonstrated that ‘the matter in respect of which the accused is in custody may be ‘criminal’ although he is not charged with a breach of our own criminal law”; iv) in extradition proceedings under the 1989 Act a committal to await the decision of the Secretary of State could only be granted if the court was satisfied that the prisoner would be committed for trial if the crimes of which he had been accused had been committed here; see paragraph 7 of Schedule 1 to the 1989 Act; v) the Galbraith (R v Galbraith (1981) 73 Cr App R 124) test applied to committals in extradition proceedings just as it does to domestic criminal trials; see R v Governor of Pentonville Prison, ex p Alves [1993] AC 284, per Lord Goff of Chieveley, speaking for their Lordships, at 290C – 292D; and vi) a prisoner in extradition proceedings who is discharged can apply for his costs out of central funds.[40]Mr Fitzgerald also drew the Court’s attention to the common practice under the 1989 regime, followed in this case, of reference to the alleged extradition crimes as “charges”. He submitted that, although the use of such language is not determinative, it indicated the perception of a close parallel between extradition crimes of which persons are accused and domestic crimes with which persons may be charged. However, as this Court noted in Fofana & Belise v Deputy Prosecutor Tubin, Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin), at Para 5, what matters is the nature of the conduct described in the extradition request (in that case the warrant); the “charge” has no formal status in the extradition proceedings. It is an informal document, normally drafted by counsel for the state seeking extradition, the sole purpose of which is to illustrate for the court the conduct described in the warrant so as to identify it as an extradition offence.[41]Finally, Mr Fitzgerald pointed out that the Home Secretary, in his formulation of the ex gratia scheme, did not stipulate that a “wrongful charge” giving rise to detention in custody had to be of a domestic criminal offence. He submitted, reverting to “the reasonable and literate man” approach, that such a man would have understood those words as wide enough to cover any prosecutorial accusation made in the English courts which leads to loss of liberty and turns out to be devoid of justification. On the particular facts of this case, he pointed to the justification of counsel for the United States Government for its objection to bail by reference to accusations or extradition “charges” that turned out not to be extradition crimes or in respect of which they were unable to show a prima facie case, and by reference to an un-evidenced allegation or “charge” as to terrorist activity. Both, he submitted, were wrongful charges bringing to Mr Raissi’s claim within the ex gratia scheme.[42]Mr Qureshi’s short response to those submissions was that the ex gratia scheme, on its plain terms, applies only to charges in domestic criminal proceedings and not to extradition proceedings where there is no formal charge and over which United Kingdom authorities have limited power of control or influence.[43]It follows, from what I have said, on the first issue - namely that a wrongful conviction or charge is a pre-requisite of the ex gratia scheme – that I regard “the reasonable and literate person” approach in this context as inappropriate. The Court’s primary concern is Mr Hurd’s and his successor’s intention as to the reach and meaning of the scheme, given its terms and context. If there were ambiguity, it does not seem to me to be the right approach to consider whether a hypothetical reasonable and literate man would have gone to the outer bounds of a possible range of reasonable meanings in his understanding of it. Equally, it is of little value to an understanding of scheme to assert, by reference to a detailed comparison of the features that extradition proceedings and domestic criminal proceedings have in common, that, as a matter of law, extradition proceedings are in other different contexts “criminal proceedings” so as render whatever accusation is made in extradition proceedings a “charge” within the scheme.[44]As I have said, the context in which Mr Hurd articulated his ex gratia scheme should be borne in mind. It would be surprising if he intended it to extend to exceptional circumstances, whatever their nature, outside the responsibility and control of United Kingdom authorities and, moreover, to dispense United Kingdom public funds for, say, serious default by the requesting state or late discovery of completely exonerating facts. As Mr Fitzgerald acknowledged in his submissions, it is the requesting state, not the United Kingdom authorities that determines when and how an extradition request is made, what illustrative “charges” to put before the extradition court and the evidential basis for them. Another contextual pointer is that, whatever accusation is made in extradition proceedings, complete exoneration as an exceptional circumstance is something that such extradition proceedings, by their very nature, cannot normally provide.[45]Accordingly, I am of the view that Mr Raissi’s claim for compensation must fail because, whether or not the Home Secretary should have considered the circumstances giving rise to his detention as exceptional, that detention did not follow a wrongful conviction or charge within the meaning of the ex gratia scheme.

Issue 3 – Exceptional circumstances

[46]If I am wrong in my conclusions on the first and second issues as to whether Mr Raissi’s detention followed a wrongful charge under the Scheme, I should give an indication of my view on his alternative case on exceptional circumstances. Serious default on the part of a member of a public authority and/or abuse of process[47]As to paragraph 1 of the ex gratia scheme and serious default, notwithstanding Ouseley J’s refusal of permission to proceed on that ground, Mr Fitzgerald, in his submissions, heaped much blame on the Crown Prosecution Service (“the CPS”) for their part in supporting the extradition proceedings in reliance on what he termed as “holding charges” and also in repeatedly opposing the grant of bail to Mr Raissi in those proceedings on the grounds of uncharged and never-to-be supported allegations of his involvement in terrorism in the United States. He submitted that such conduct, whether or not it amounted to “serious default” under paragraph 1 of the scheme, amounted to such a gross abuse of the process of the court that it should have been regarded by the Home Secretary as exceptional enough for the purpose. In fact, albeit not formally, it seemed to me that he sought to re-open his application to proceed on the serious default ground.[48]Extradition, though the subject of domestic legislation governing its procedures, is essentially a vehicle for the extraditing state to give effect to treaty arrangements with the requesting state. As Glidewell LJ, with whom Curtis J agreed, held in R v DPP, ex p Thom (1994) 21 December, EC, at pp 9E – 11B of the transcript, the Court could not judicially review a decision of the Director of Public Prosecutions not to discontinue extradition proceedings because, when acting in such proceedings on behalf of the requesting state, the Director does not act as a prosecutor, but as a lawyer on behalf of a foreign client whose instructions it is generally bound to follow. In my view, and notwithstanding Mr Fizgerald’s submission to the contrary, that proposition is of wide application and not limited to the facts in Thom of discontinuance. There may no doubt be circumstances in which the CPS’s role, not only as advocate but also in its public capacity, is engaged, say, where the liberty of the subject on an issue of bail arises. In such an instance, in the event of conflict between its instructions from the requesting state and its duty to the court on such matters, it may be that, notwithstanding the principle of comity between states to give effect to extradition treaties, the CPS in a particular case should not act unquestioningly on its instructions. If and when that occurs, it seems to me that it would be a matter for consideration by the CPS whether to withdraw rather than defy or ignore those instructions.[49]But, in any event, on the facts as they were put to the Home Secretary, I can see no basis on which he could have taken the view that the CPS abused the process of the court in conducting the proceedings on the extradition “charges” and in opposing bail in reliance on instructions about the terrorism allegation. As Ouseley J said in paragraph 17 of his ruling refusing permission to proceed on this aspect, it is unarguable on the facts placed before the Secretary of State that he should have found that the conduct of the United States Government or CPS had surmounted the very high threshold serious default required by the scheme, or such as to amount to abuse of process.

Complete exoneration

[50]Mr Fitzgerald submitted that failure by the United States Government to establish in one case that the accusation amounted to an extradition offence and in the other, a prima facie case could be equated with complete exoneration within the ex gratia scheme. As to the allusion by counsel on its behalf of a terrorist allegation in the background, he relied on the Judge’s comment, when eventually granting bail, that he had received “no evidence at all to support that allegation”. He also relied on Ouseley J’s view, when granting permission for Mr Raissi to make this claim, that it was “at least arguable” that he “should be regarded as completely exonerated”, given the lack of production of material to support it.[51]Mr Qureshi’s response to this contention was that there was no complete exoneration on the facts of the case because the only “charges” were those of obtaining a medical certificate by making false statements, on which the Judge discharged Mr Raissi, not because he completely exonerated him of those accusations, but because the necessary evidential and legal requirements had not been made out. As to the allusions of terrorism made in the course of the proceedings, it was not, Mr Qureshi submitted, a “charge” in any sense, nor, even if it were, could it be said to be an accusation of which he had been completely exonerated.[52]In my view, it cannot be said that the outcome of the extradition proceedings against Mr Raissi completely exonerated him in either respect. Complete exoneration is a high threshold. As Mr Hurd, in paragraph 2 of the ex gratia scheme emphasised, it is not satisfied by mere inability on the part of a prosecuting body “to sustain the burden of proof beyond a reasonable doubt”. In effect, this example of an exceptional circumstance, requires the discharge by the claimant of a reverse burden of proof of his innocence. As Rose LJ, as he then was, observed, in giving the judgment of the Court in Garner, that is consistent with Article 14.6 of the International Covenant and section 133 of the 1988 Act. In his judgment, Rose LJ made plain at 605a-b and 608d-f, that payments are made under this head only where facts emerge which establish beyond any doubt that the accused person did not commit the crime, a high threshold but not an impossible requirement, and one that is consistent with the scheme and is a matter of judgement for the Home Secretary. A new or newly discovered fact must show “conclusively” or “beyond reasonable doubt” that there has been a miscarriage of justice. Such reasoning, which was before the House in McFarland, was no doubt in the minds of all their Lordships in that case, but in particular that of Lord Steyn in his description of the “more onerous provisions” of paragraph 2 of the scheme.[53]Given such authority, which is binding on the Court, and with which, with respect, I agree, the Court cannot proceed on the assumption suggested by Mr Fitzgerald that Mr Raissi was “completely exonerated” by his discharge on the extradition “charges” or, on the absence of any evidential support for the terrorist allegation. It is not sufficient, as paragraph 2 of the scheme makes clear, that the requesting state has not been able to sustain the burden of proof as to the commission of the offences or as to whether they amounted to extradition crimes. In addition, for what it is worth in relation to this example of exceptional circumstance, it is not a case where some newly discovered fact could be prayed in aid as the completely exonerating factor. Issue 4 – irrationality of the Home Secretary’s decision that there were no other exceptional circumstances on which he could exercise his discretion to make a payment[54]Mr Fitzgerald submitted as a further alternative, again on the basis that exceptional circumstances are a free-standing alternative to detention following a wrongful conviction or charge, that the Home Secretary in his various decision letters dealt inadequately and, in any event, irrationally, with that avenue to the exercise of his discretion. Mr Fitzgerald’s complaint follows his basic argument that the Home Secretary failed to recognise that the ex gratia scheme provides for two free-standing categories of payment, one for detention following a wrongful charge or conviction resulting from default on the part of a public authority and the other for wrongful detention arising, not necessarily out of a charge or conviction but in “other” exceptional circumstances. In consequence, he submitted, the Home Secretary erred in reading the scheme as tying exceptional circumstances to a domestic charge, thereby infecting or unlawfully fettering his discretion when considering exceptional circumstances.[55]I have summarised the effect of the Home Secretary’s three decision-letters in paragraph 19 of this judgment. They were structured on what I regard as the correct premise, that payment for wrongful detention under the scheme is payable only on detention resulting from a wrongful charge and, in addition, in exceptional circumstances such as to merit compensation. His stance throughout, in particular, in relation to the “terrorist background” to the extradition “charges” was that there were there no exceptional circumstances, but even if there were, they were not of the type for which the scheme provided.[56]The Home Secretary, in his second and main decision letter, dated 12th July 2005, responded in the following way to Mr Raissi’s claim:
“2. Offences for which Extradition Sought … the Home Secretary remains of the view that there is no compelling evidence of any ulterior purpose. In particular, the suggestion that evidence linking your client to the September 11th attacks was ‘talked up’ is not accepted. It is accepted that District Judge Workman concluded that there was insufficient evidence to support the charges before him. The Home Secretary understands that at the committal hearing itself the CPS did not raise the issue of any terrorist allegation by the US authorities. The Home Secretary also understands that earlier mention of a possible links to terrorism was made as a result of an ongoing investigation and not as a means to enhancing the prospects of securing extradition. Certainly District Judge Workman’s ruling does not suggest that he considered there to have been an abuse of process. Notwithstanding this view, even if there were any ulterior motive then it does not follow that any abuse of process was the fault of the British prosecuting authorities or any public authority within the scope of the ex gratia . … 3. No Evidence of Ulterior Purpose Your client was charged with making false statements, by way of non-disclosure, on his Federal Aviation Administration Form. Upon considering your original letter and the available documentation, the Home Secretary took the view that the British authorities had acted reasonably in acting on the instructions from the US authorities on the information held relating to the relevant charge. He remains of this view. As stated in our original decision letter, the CPS has no power to discontinue or withdraw proceedings in an extradition case as the Foreign state is the prosecutor and instructions to do so must come from them. Further, the DPP is not to be regarded as a prosecutor in these proceedings but ‘as a lawyer acting on behalf of a foreign client’. We consider that this is relevant to the question of serious default. There is no evidence to suggest that the UK authorities did not act in an appropriate and professional manner in line with the instructions received from their foreign client. We have been told that the CPS reference to ‘holding charges’ was a reference to the on-going investigations in the United States rather than the fact that the charges did not merit an application for extradition and/or the resultant loss of liberty. We have been informed that representations made to the court were based on instructions from the United States that were based on evidence sworn in Courts in the United States or obtained in the course of a complex FBI investigation. The Home Secretary believes that the CPS performed its duties to the court and defence during extradition proceedings and advised the court and defence of any changes in instructions as soon as practicable. 7. Exceptional circumstances You have argued that your client comes under this limb of the ex gratia scheme, on the basis that the allegations of terrorist links were the cause of his detention, but he was completely exonerated of those allegations. As you know, the ex gratia scheme covers wrongful conviction or charge. I would reiterate that the Home Secretary’s view is that it relates only to charges brought in this jurisdiction. Notwithstanding that, your client was not charged with any offences directly related to alleged terrorist activity, and the Home Secretary regards it as reasonable to consider an application only on the basis of the charges that were actually laid. It would not be right for public funds to be expended on compensation in respect of charges which were never actually brought.”
[57]Mr Fitzgerald’s reliance on the exceptional circumstances in their own right focused understandably on the comparative triviality of the extradition “charges” when compared with the great seriousness of the background allegation of his involvement in terrorism. He suggested that the CPS, in conducting the extradition proceedings on behalf of the United States Government was a party to an abuse of process in using the extradition “charges” as holding charges and/or as a means to advance a case in due course for his return to the United States to face charges there of terrorism, a suggestion which, as I have indicated, Ouseley J and the Home Secretary rejected.[58]However, more to the point and regardless of abuse of process, ulterior purpose or other default by the United States Government or the CPS, Mr Fitzgerald submitted that the extradition “charges” were not the true cause of Mr Raissi’s detention. The detention, as Ouseley J was inclined to accept, was because of the alleged terrorist background. Such loss of individual liberty – four and half months of it – on comparatively trivial and, in the event, unestablished extradition “charges” and a wholly unsupported allegation of terrorism, would, it seems to me to be worthy of consideration by the Home Secretary as an exceptional circumstance under the scheme, whether or not there was fault on the part of the part of the CPS or the United States Government – but only in the event, which I would reject, of his claim falling within the scheme as detention following a wrongful charge.[59]It follows that, if, contrary to my view, the Secretary of State should or could have approached the matter by exercising his discretion one way or another on the basis of an exceptional circumstance as a free-standing consideration, it may be that there is something in Mr Fitzgerald’s suggestion that he could and should have considered Mr Raissi’s detention for so long to so little purpose as in itself an exceptional circumstance justifying a payment under the scheme. In the way in which the matter was put to the Home Secretary, focusing on the examples of exceptional circumstances specified in paragraphs 1 and 2 of the scheme coupled with the issue as to whether, as the detention arose in extradition proceedings, it was within the scheme at all, it is not surprising that the Home Secretary did not spend much time on the wider possibilities. However, even if he had done, it should be remembered that the threshold of exceptionality is high. Sir Thomas Bingham MR, as he then was, said in R v SSHD ex p Bateman & Howse 5 May 1993, Div Ct,at p 14G of the transcript:
“It was essentially a question for the Secretary of State as to what he regarded as an exceptional case. It is difficult to imagine circumstances in which this court could properly interfere with a judgment by him that a case was not so exceptional as to justify special behaviour.”
See also per Lord Scott in McFarland, at para 41 and the holding of the House in R (Mullen) v SSHD [2005] 1 AC 1, where there was no dispute that the case fell for consideration under paragraph 1 of the ex gratia scheme because of serious default in bringing the clamant back to this country from abroad to face trial, conviction and a 30 years prison sentence, and where the conviction was quashed as unsafe for abuse of process on appeal after he had served 10 years of the sentence. However, as Mullen did not attack the finding of guilt at trial or otherwise maintain his innocence, the House held that the Home Secretary was entitled in his discretion to refuse to make an ex gratia payment under the Scheme and had not acted irrationally in doing so.[60]However, for the reasons I have given, I would reject Mr Raissi’s claim because the facts on which he relies, having arisen in extradition proceedings, not in the domestic criminal process, do not fall within the ex gratia scheme so as to require the Home Secretary to consider whether there were any exceptional circumstances on which to exercise his discretion whether to make a payment under it. Mr

Justice Wilkie:

[61]I agree.