Harris, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3218 (Admin)

[2007] EWHC 3218 (Admin)Case No CO/7183/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 10 December 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF HARRISClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr H Southey appeared for ClaimantMr H Keith appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: At about 1 am on 5 December 1999 Lorraine Harris, the claimant, alerted her general practitioner that her 15-month old son was having difficulty breathing. Her general practitioner attended her home. He noticed that the claimant was calm and controlled; she seemed an experienced and sensible mother; that her son's eyes were normal and had all appropriate reflexes; his temperature was mildly raised; there were no signs of abuse or bruising. The doctor concluded that there was nothing wrong with him and left her house at 1.30 am.[2]Just over an hour later at 2.34 am the claimant made a 999 call to the emergency services and reported that her son would not wake up. An ambulance arrived seven minutes later. The crew found that her son did not have a pulse and was making no respiratory effort. He was noted as having fixed and dilated pupils and retinal haemorrhages. He was taken immediately to hospital and examined at about 4.30 am by a consultant paediatrician who noted widely dilated pupils, gross pre-retinal haemorrhages, but no external injuries. A subsequent test demonstrated marked hypofibronogenemia. Despite the best efforts of the medical team, the child died on 6 September.[3]In March 2000 the claimant was arrested and interviewed. She gave an account in interview which was entirely consistent with the evidence she gave at trial, which was to the effect that she had done nothing beyond shake her son moderately and bounce him up and down on her knee in an attempt to resuscitate him.[4]Dr Bouch, a pathologist, conducted a post mortem. He concluded that the child had died as a result of a shake which had caused bleeding into his skull around the brain. His post mortem report contained the following:
"The post mortem examination confirmed a markedly swollen and softened brain and spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachhnoid haemorrhage over the surface of the spinal cord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment."
In Dr Bouch's opinion, accepted medical opinion was that the force required to produce injuries from shaking was greater than that resulting from rough handling of an infant.[5]Dr Giangrande gave evidence that the low level of fibronogen in the boy's blood system was the result of an injury sustained by him and not a pre-existing condition. A consultant paediatric brain surgeon gave evidence that the amount of blood over the surface of the brain shown on the scan and the description of the amount of blood over the surface of the brain at post mortem was not sufficient to cause his death. In his opinion it was injury to the brain itself which caused death, caused either by shaking or impact or a combination of both. In his opinion the incident must have occurred after the general practitioner left at 1.30 am.[6]Medical evidence was called on behalf of the claimant at the trial which sought to explain the injuries in a way not suggestive of the use of excessive force by her. As I have noted, she gave evidence to the effect that she had not used excessive force on her son. She was nonetheless convicted of manslaughter - after a trial about which there is no criticism - and sentenced to three years' imprisonment.[7]Her case was one of four referred to the Court of Appeal after well known doubts had been ventilated about expert evidence in so-called shaken baby syndrome cases and after the trawl of such cases initiated by the Attorney General. Very extensive medical evidence was led before the Court of Appeal, both as to general issues and as to issues specific to this claimant's case. The general issue concerned a challenge to the accepted hypothesis concerning shaken baby syndrome to the effect that findings of a triad of intra-cranial injuries, consisting of encephalopathy, subdural haemorrhages and retinal haemorrhages, were either diagnostic of, or at the minimum very strongly suggestive of, the use of unlawful force.[8]A team led by Dr Geddes had subjected this hypothesis to critical analysis. An attempt was made by her team to postulate an alternative, unified cause of the triad of symptoms. But as she acknowledged to the Court of Appeal, that hypothesis did not ultimately withstand critical analysis.[9]The Court of Appeal's conclusion about that debate on the general issues was set out in paragraph 70 of its judgment as follows:
"Whilst a strong pointer to NAHI" (non-accidental head injury, the Court of Appeal's preferred description of shaken baby syndrome) "on its own we do not think it possible to find that it must automatically and necessarily lead to a diagnosis of NAHI. All the circumstances, including the clinical picture, must be taken into account. In any event, on general issues of this nature, where there is a genuine difference between two reputable medical opinions, in our judgment, the Court of Criminal Appeal will not usually be the appropriate forum for these issues to be resolved. The focus of this Court will be (as ours has been) to decide the safety of the conviction bearing in mind the test in fresh evidence appeals which we set out below. That is not to say that such differences cannot be resolved at trial. At trial, when such issues arise, it will be for the jury (in a criminal trial) and the judge (in a civil trial) to resolve them as issues of fact on all the available evidence in the case ..... "
[10]The court then turned to detailed medical evidence about the particular case. It heard from a large number of experts in their fields, the opinions of whom on some issues diverged widely. There was what the court described as "a head-on collision" between the two consultant neuro-pathologists, Dr Waney Squier and Dr Lucy Rorke-Adams. Their views differed not only as to their opinions but as to their findings of clinical signs. I give as an example the difference between them about photographs taken at post mortem which both examined:
"116 Photographs, G-H 1, 2 and 3 were said by Dr Rorke-Adams to show clear evidence of brain injury caused by trauma. She said that there could be no other cause. Dr Squier was of the opinion that the injuries shown in the photographs 1 and 3 and damage to the nerve tissue at the cervicocranial junction were probably not caused by trauma and were consistent with herniation of the brain at the foramen magnum. She said herniation was caused by the pressure of the swelling brain when it impacted with the narrowing channel of the foramen magnum. As to the blood shown in photograph 2 Dr Squier said it was intrafalcine bleeding (bruising) within the membrane, seen at post mortem which was an extremely common finding in babies who have suffered from failure from blood or oxygen supply. 117 There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation for these that the vertebral arteries must have been ruptured causing massive subarachnoid bleeding and subdural haemorrhages. She accepted that the post mortem revealed no soft tissue injuries to the neck but pointed out this explanation fitted with the combination of findings. 118 Dr Squier described the subdural haemorrhages of the spine as probably caused by blood seeping down from the haemorrhage at the craniocervical junction. She said it was a common finding. Further, she did not accept that such subdural haemorrhages as were found at post mortem were caused by trauma. She said it was local tissue necrosis causing bleeding exacerbated by a clotting disorder (DIC). In addition she said that she had seen cases where bleeding had seeped from the dura into the subdural space. As an example of this she provided her findings in the case to which we have referred in paragraphs 71 to 73. 119 In our judgment there are difficulties with the evidence of both these doctors in respect of their findings. The problem so far as Dr Squier is concerned is three-fold. First her explanation of herniation as the cause of haemorrhages in the area of the foramen magnum is, on the evidence we have heard, to say the least controversial. Dr Rorke-Adams dismissed this explanation as impossible. Mr Peter Richards said that in his 20 years experience as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at this site. He described Dr Squier's evidence on this point as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism that triggered these injuries. All she can say is that the primary source of the injuries was some form of brain swelling. In her view the most likely explanation was sepsis or infection; and the least likely was trauma. Beyond that she frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence was not challenged, said that there was no question of DIC playing any part in any of these injuries. 120 So far as Dr Rorke-Adams is concerned, in our judgment, there are also difficulties in respect of her evidence. First, the injury to the brain which she described by reference to photographs G-H 1, 2 and 3 are not referred to in the post mortem report of Dr Bouch. Secondly, her explanation of a rupture of the vertebral artery may not be entirely consistent with there being no evidence of a soft tissue injury to the neck. But, as she pointed out, at post mortem the vertebral arteries were not dissected. Thirdly, subdural haemorrhages of the spine would appear to be very rare. Fourthly, the subdural haemorrhages described by her are neither thin-film nor situated in the classic position for SBS namely at the top of the head."
[11]As that recital of the differences between the two neuro-pathologists demonstrates, there were detailed issues of fact between them as to what clinical symptoms were present and detailed disputes as to the conclusions which could be drawn from such facts as they believed to be capable of being found.[12]There was a disagreement almost as sharp between the evidence of the ophthalmic surgeons called. Dr Gillian Adams expressed the opinion that the fact that the ambulance crew noted that the child's pupils were fixed and dilated at 2.41 am was a sign that the brain was swollen at that stage. A radiologist and a neuro-surgeon called for the Crown did not accept that there could have been brain swelling at 2.41 am. The significance of Dr Gillian Adams' opinion was summarised by the Court of Appeal at paragraph 127:
"The impact of this issue is that, if Dr Adams may be correct, brain swelling may have taken place sooner than supposed by the Crown's witnesses making it possible that there was a cause for the retinal haemorrhage findings other than shaking."
The court had earlier noted the opinion of the neuro-surgeon, Mr Richards (there referred to) who was very experienced, that he was in no doubt that the force used to cause the triad of injuries must have been more than rough handling.[13]Mr Gregson, the ophthalmic surgeon called for the Crown, described the retinal haemorrhage findings as very severe and he, too, was of the opinion that they could only have been caused by a severe degree of trauma. The ophthalmic pathologist called by the Crown, Dr Bonshek, agreed with that opinion and described the injuries as highly suggestive of non-accidental injury.[14]The court went on to consider a hypothesis espoused by, amongst others, Dr Squier that the cause of brain swelling might have been an infection. The end result of the evidence called on that issue was to lead counsel for the claimant to accept that infection as a possible cause of collapse was effectively disproved by the evidence called by the Crown.[15]The court's conclusion was set out in paragraphs 141 to 153 of its judgment. In reaching the conclusion to which I will refer in a moment, it applied the familiar Pendleton test, most recently re-stated by the Privy Council in Dial v State of Trinidad and Tobago [2005] 1 WLR 1660 at paragraphs 31 and 32, in the opinion of Lord Brown:
"In the Board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal - assuming always that it accepts it - to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have on the mind of a jury. That said, if the court regards the case as a difficult one it may find it helpful to test its view by asking whether the evidence given at the trial might reasonably have affected the decision of the trial jury to convict."
[16]Having dismissed the infection theory, the court said at paragraph 143:
"143 So far as the other issues are concerned, the evidence at trial and the evidence produced by the Crown in this appeal provide a strong case against Harris. Mr Horwell's submission that the triad is established and any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as the case is against Harris we have concerns about the safety of the conviction."
It went on to analyse those concerns. First of all, it would have had to have rejected the evidence of Dr Squier in its entirety. Unless that was possible, then there was or might have been no pathological evidence of trauma. Further the evidence of Dr Squier, if right, cast doubt on the significance of such subdural haemorrhages as there were and on the conclusions to be drawn from them. The court's conclusion was that if the issue were to be resolved it would have to be for a jury to resolve it.[17]Secondly it observed that the retinal haemorrhages findings on their own would not suffice to support a finding of shaken baby syndrome.[18]Thirdly, it noted that there were rare cases when injuries would not correspond to the amount of force used. In other words, that apparently severe injuries could result from minimal force in rare cases. The court noted that the medical profession had become more aware of degree of force necessary to cause injuries by the growing science of bio-mechanics, which it had analysed earlier in its judgment.[19]In paragraph 150 the court noted as a significant factor the clinical history. The claimant was a careful and caring mother. She called the general practitioner out because of her concerns for her son. He described her as calm and collected at that time. She telephoned the emergency services. In the court's view - " ..... this history combined with the absence of findings of bruises to any part of the head, face or body and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown's case of an unlawful assault based on the triad of injuries, itself a hypothesis."[20]The court's ultimate conclusion was set out in paragraphs 152 and 153:
"152 As we have said, the Crown's evidence and arguments are powerful. We are conscious that the witnesses called on behalf of Harris have not identified to our satisfaction a specific alternative cause of [the boy's] injuries. But in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI. 153 The central issue at trial was whether Harris caused the death of her son ..... by use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed ..... "
[21]From that unavoidably lengthy analysis of the Court of Appeal's reasoning and the underlying facts which supported it, the following conclusions can safely be drawn:(1) the court applied the Pendleton test and did not decide for itself the complex medical issues raised by the evidence which it heard;(2) all that it decided was that the evidence which it had heard could, if accepted by the jury, have led a jury to acquit the claimant;(3) notwithstanding that conclusion, the court was of the opinion that the Crown's case was a strong one. I do not understand that conclusion to be consistent with the proposition that at the conclusion of a new trial, on that evidence, a trial judge would have been obliged to direct the jury to acquit the claimant;(4) the material considered by the Court of Appeal which led to its conclusion was a complex mixture of fact and opinion.[22]The Court of Appeal quashed the claimant's conviction but did not order a re-trial. There is no significance in the lack of such an order. She had served her sentence. It would have been pointless and not in the public interest for a fresh trial to occur. In such circumstances the Court of Appeal routinely does not order a fresh trial. It was not invited to do so by the Crown; and I have no doubt that if it had been invited to do so it would have declined the invitation.[23]Following upon the quashing of her conviction, the claimant applied for compensation under Section 133 of the Criminal Justice Act 1988. Her claim was rejected by a letter dated 31 May 2006. The ground of rejection was stated to be - "The Home Secretary is of the opinion that your client does not fulfil the statutory requirements of Section 133 (1) of the Act because the medical evidence considered by the Court of Appeal did not disclose a new fact ..... The Home Secretary's view is that this new medical evidence about the degree of force required to cause a triad of injuries is not a new or newly discovered fact; rather it shows the changing medical opinion about the degree of force needed to cause a triad and is properly categorised as new evidence of facts known all along rather than new facts."[24]When invited to reconsider, the defendant responded by a further letter of 9 August 2006 in these terms:
"He is not satisfied that the medical evidence referred to is fact as opposed to opinion, that is subject to development and change. It can therefore only be regarded as new evidence."
[25]The challenge to the Home Secretary's decision is based upon the terms of those letters but also on wider grounds. The decision is supported by Mr Keith for the defendant, not just on the basis of the letters but also on wider grounds.[26]Section 133 provides:
"(1) ..... when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed ..... 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 ..... "
Sub-section (5) defines "reversed" - " ..... as referring to a conviction having been quashed - (a) on an appeal out of time; (b) on a reference - (i) under the Criminal Appeal Act 1995 ..... "[27]From the terms of Section 113(1) it is plain that the following must be established before the Secretary of State becomes obliged to pay compensation: (1) the conviction must have been reversed following an appeal out of time or on a reference;(2) the reversal must be "on the ground that" a new or newly discovered fact shows that there has been a miscarriage of justice;(3) that there has been a miscarriage of justice must be shown beyond reasonable doubt;(4) there must have been a miscarriage of justice;(5) the person claiming compensation must have suffered punishment as a result of the conviction quashed. Thus someone whose conviction was quashed but in respect of whom an order for re-trial was made, which trial resulted in a fresh conviction, would not qualify for compensation under Section 133 because he would have suffered punishment not as a result of the quashed conviction but as a result of the proper conviction at re-trial.[28]There is no dispute in this case that the claimant's conviction has been reversed on a reference. There is no dispute that she has suffered punishment as a result of the reversed conviction. The remaining elements of her claim are however in dispute.[29]The interpretation of Section 133 was considered by the House of Lords in R (on the application of Mullen) v Secretary of State for the Home Department [2005] 1 AC 1. There was a well known divergence of view between Lord Bingham and Lord Steyn. The facts of the case are far removed from the present case and the ratio decidendi of the decision does not assist in the resolution of this claim. It was simply that because the ground upon which Mullen's conviction was quashed did not relate to the investigation or the conduct of the trial or the evidence led at it, so he was not entitled to compensation under Section 133. It was a striking feature of this case that at no stage did he maintain that he was in fact innocent of the crime of which he had been convicted.[30]Lord Bingham referred to two statements by Home Secretaries under which the ex gratia compensation scheme had operated prior to the enactment of Section 133 in 1995. He drew assistance from those statements in determining the meaning of "wrongful convictions". In paragraph 4 of his speech he observed:
"The expression 'wrongful convictions' is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common factor in such 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."
There being no such factor present in Mullen, Lord Bingham was of the opinion that his claim should be rejected on that narrow ground.[31]Lord Bingham was careful not to express a concluded view about the basic submission made by the Secretary of State that Section 133 obliged him to pay compensation only when a defendant is finally acquitted in circumstances satisfying the statutory conditions if shown, beyond reasonable doubt, to be innocent of the crime of which he had been convicted. He said he would hesitate to accept it in paragraph 9. He also observed in paragraph 10, in relation to the opposite submission made on behalf of Mullen, that he was - " ..... not at present inclined to accept Mr Pleming's submission that denial of compensation to a defendant acquitted in circumstances meeting the conditions of Section 113 necessarily infringes the presumption of innocence protected by Article 14 (2) of the ICCPR ..... " In paragraph 11 he observed that he had - " ..... necessarily rejected Mr Mullen's main argument, accepted by the Court of Appeal, that any defendant whose conviction is reversed in circumstances meeting the conditions in Section 133 is entitled to payment of compensation."[32]Lord Bingham's focus on things that may have gone wrong in the investigation or at trial I refer to as a miscarriage of process. Lord Steyn, with whose views on this issue Lord Rodger of Earlsferry agreed, dealt head on with the submission of the Secretary of State that the concept of a miscarriage of justice extended only to cases where a person who was convicted of an offence is later shown, beyond reasonable doubt, by virtue of some new or newly discovered fact, to have been innocent of the offence of which he was convicted. At paragraph 35 he observed, uncontroversially, that Parliament - "in enacting Section 133 ..... had intended to give effect to the international obligations of the United Kingdom under the ICCPR in domestic law." And that there was no foundation whatever in the language of the underlying Article 14 (6) or in the section for the suggestion that Parliament intended to use the words "miscarriage of justice" in a wider sense than it bore in Article 14 (6).[33]Lord Steyn observed, again uncontroversially, "miscarriage of justice" was an autonomous concept, that is to say a concept not fettered by English jurisprudence but one which should apply throughout the States which have adopted the Convention, uniformly. He analysed, amongst other factors, French jurisprudence which led him to the following conclusion at paragraph 46:
"The requirement that the new or newly discovered fact must show conclusively (or beyond reasonable doubt in the language of Section 133) 'that there has been a miscarriage of justice' is important. It filters out cases where it is only established that there may have been a wrongful conviction. Similarly excluded are cases where it is only probable that there has been a wrongful conviction. These two categories would include the vast majority of cases where an appeal is allowed out of time."
And - "While accepting that in other contexts 'a miscarriage of justice' is capable of bearing a narrower or wider meaning, the only relevant context points to a narrow interpretation, viz, the case where innocence is demonstrated." I refer to the circumstances analysed by Lord Steyn as an evidential miscarriage of justice.[34]Subsequent case law has established that where new evidence results in a finding of fact there can be a new fact or newly discovered fact for the purposes of Section 133 even where the fact relates to a matter that was in issue at trial (see R (on the application of Murphy) v Secretary of State for the Home Department [2005] 1 WLR 3516 at paragraph 50). The new fact can relate to the credibility of a principal prosecution witness: R (on the application of Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 Admin at paragraph 14.[35]I turn to the arguments addressed by Mr Southey for the claimant and Mr Keith for the defendant.[36]Mr Southey challenges the ground upon which compensation was refused as disclosing an excessively narrow view of what is a new or newly discovered fact. I accept that submission.[37]In cases such as this - which depend principally or wholly on the conclusions to be drawn from expert medical evidence about minute signs in the body of a dead child - the distinction between opinion and fact is exceptionally hard to draw. Indeed one can properly describe it as metaphysical. As the analysis of the Court of Appeal of the detailed controversy between Dr Rorke-Adams and Dr Squier demonstrates, their views differed both as to clinical findings and as to opinion. But also their clinical findings depended, to some extent at least, upon the opinion that they formed about the likely cause of such clinical evidence as they found. It is simply impossible in a case such as this to disentangle opinion from fact, and it would be seriously unjust to a claimant to refuse a claim for compensation merely because the claim was based upon a change in medical opinion as well as in clinical findings.[38]Section 133 was directed to rectifying conclusions of fact drawn by a jury on the basis of the evidence which it had heard. There is no proper basis, in my view, for construing Section 133 so narrowly as to exclude from consideration new opinions by experts in the field as well as new facts strictly so called. The focus of Section 133 is the rectification - by payment of compensation - of miscarriages of justice. It matters not, provided that the base conditions are fulfilled, that the miscarriage of justice occurs as a result of a combination of new fact and new opinion about facts in a case such as this.[39]Accordingly the narrow basis upon which the claim was refused, in my view, was mistaken and based upon an erroneous assessment of the law applicable to the claim. That is not however determinative of this claim for there would be no purpose in my quashing the decision and requiring it to be reconsidered if in fact the defendant would be bound to reach the same decision for a somewhat different reason.[40]Mr Southey submits that it is not necessary, even in an evidential miscarriage of justice case, for the claimant to show that she was innocent of the charge of which she was convicted. He accepts for present purposes that - following upon the decision of this court in Clibery - it is not arguable at this level that if all the claimant can show is that there was a doubt about guilt which could or should have led a jury to acquit, applying the criminal burden and standard of proof, the claim for compensation should be allowed.[41]Mr Southey made that concession in light of the decision of the court in Clibery, and in particular the observations of the Lord Chief

Justice giving the judgment of the court, at paragraphs 25 and 26 as follows:

"Lord Bingham, in the passage of his judgment that we have set out above, considered two different situations, each of which he considered fell within the description of 'miscarriage of justice' in Section 133 of the 1988 Act. The first is where new facts demonstrate that the claimant was innocent of the offence of which he was convicted. In such circumstances, it is possible to say that if the facts in question had been before the jury, he would not have been convicted. The second is where there are acts or omissions in the course of the trial which should not have occurred and which so infringed his right to a fair trial that it is possible to say that he was 'wrongly convicted'. In such circumstances it is appropriate to say that the claimant should not have been convicted."
And - "The most that can be said is that if the jury had had advance notice of the lies that the complainant told after her husband's trial they might not have convicted." That concession seems to me to be not only inevitable at this level but also right in principle.[42]Mr Southey has not addressed me on the Strasbourg learning on the presumption of innocence. I make no decision by reference to that. He reserves his position on that for another day. Subject to that it seems to me to be outwith the statutory language to describe a case in which a jury might have reached a different conclusion as showing "beyond reasonable doubt that there has been a miscarriage of justice". Lord Bingham's observations about miscarriages of process seem to me to have no bearing on evidential miscarriage of justice cases. In evidential miscarriage of justice cases what is required is that the new or newly discovered fact must show beyond a reasonable doubt that there has been a miscarriage of justice. That is not shown where all that is established is that, if new evidence had been available, a properly directed jury might have reached a different conclusion.[43]Mr Southey makes the alternative proposition that if a claimant can show that if the new evidence had been available a judge should have directed the jury at the conclusion of the prosecution case, or, I suppose, exceptionally at conclusion of all the evidence, to acquit. That proposition seems to me to be arguable.[44]Take a case in which a defendant gives no account at interview or at trial - and in which the only evidence against him is that of a single witness - who is convicted on the basis of that evidence together with the supporting evidence of his own silence. If the evidence of the sole witness were subsequently shown to be wholly wrong, whether due to improper motive by the witness or simply by mistake, it is at the least arguable that there would have been in that claimant's case a miscarriage of justice even though nobody would ever have decided, and indeed might never know, whether the defendant was in fact guilty of the charge. But that proposition cannot avail this claimant. For - as the recital of the medical evidence heard by the Court of Appeal and by the trial jury demonstrates - there was powerful evidence against this claimant. At the conclusion of the prosecution case or indeed at the conclusion of all the evidence, on the view of the Court of Appeal expressly stated, it would have been for the jury to determine the issue. Accordingly even if Mr Southey's proposition is well founded in law it does not avail this claimant.[45]As the passages which I have cited from the judgment of the Court of Appeal demonstrate, all that it decided was that the new evidence created the possibility that when taken with the evidence given at the trial a jury might properly acquit the claimant. That falls well short of demonstrating beyond reasonable doubt that there had been a miscarriage of justice in this case. Accordingly and for that simple reason, I dismiss this claim.[46]MR SOUTHEY: I have two applications on behalf of the claimant. One, I suspect, is uncontroversial which is legal service assessment.[47]The second application - which might be slightly more controversial - is for permission to appeal. I have made it very clear this morning that obviously I regarded myself and the Court of Appeal as being bound by Clibery. As far as I am aware, Clibery was not appealed. I know not why. In my submission there are arguments that can be put, particularly regarding the judgment (?) - - which I have deliberately not put because I recognise to a large extent it would be a waste of the court's time. There are arguments regarding presumption of innocence in particular that mean that the approach taken on Clibery, in my submission, is arguably wrong. And it is also an important issue to determine what is meant by miscarriage of justice in this context. It is a matter that has caused a lot of delay, as your Lordship has commented, and we are still in a position where arguably it is not clear what is meant entirely at least. In my submission there is an important issue that justifies a grant of permission, recognising of course that the test of permission is not merits but the issues raised.[48]MR JUSTICE MITTING: Mr Southey, of course the issue is important. Subject to any argument that you may deploy about presumption of innocence, it seems to me that on the law as I am bound to find it to be, I inevitably have to reject this claim. Furthermore on conventional legal principles I cannot conceive that my decision - and even the reasoning supporting it - is wrong. You may well be able to persuade the Court of Appeal or the House of Lords that the presumption of innocence in Strasbourg law may put a different complexion on things. But I am not in a position to judge that because - for entirely understandable and proper reasons - you have not deployed that material in front of me.[49]I think in those circumstances the right course is for me to adopt is to require you to justify the giving of permission to appeal to the Court of Appeal and leave to it them to decide. Accordingly I refuse your application. I make the order for costs you wanted.[50]MR SOUTHEY: Thank you.[51]MR KEITH: There is no other matter.

Cited in 1 later judgment