Cleeland v Criminal Cases Review Commission [2007] EWHC 3360 (Admin)

[2007] EWHC 3360 (Admin)Case No CO/6800/07
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 18th December 2007
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE JACK
Between
PAUL ALEXANDER CLEELANDClaimantv
Between
CRIMINAL CASES REVIEW COMMISSIONDefendant
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)
The claimant appeared in person for in person for The defendant did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE JACK: On 25th June 1973, the claimant in this application for judicial review, Paul Alexander Cleeland, was convicted of the murder of Terence Clark on 5th November 1972. Terence Clark was shot twice with a shotgun. It was alleged that the claimant fired the gun. Part of the evidence given against him was that given by Mr John McCafferty of the Metropolitan Police Forensic Service Science Laboratory in relation to the contamination of lead of the claimant's clothes. Since his conviction, the claimant has persistently sought to establish his innocence. Recently he has sought to do so using the Criminal Cases Review Commission, the defendants to the present application.[2]His first application to the Commission was in 1977 and in 2000 his case was referred to the Court of Appeal. The conviction was upheld by the Court of Appeal on 12th February 2002. On 6th September 2002 the claimant made a second application to the Commission. The application was treated as a priority but was refused on 31st March 2003. On 22nd February 2007 the claimant made a third application to the Commission. It was based on the allegation that the evidence of Mr McCafferty as to lead contamination could not be relied on. On 18th July 1988, when raising the claimant's case in the House of Commons, Mr John Hughes MP informed the House:
"There is also the evidence of particles of lead on Paul Cleeland's clothes. That was used to convict Paul Cleeland. That forensic evidence would not be accepted now. It has no credence as it failed to distinguish between environmental contamination and lead from firearms residue."
That is very much the case which the claimant now seeks to advance.[3]On 16th April 2007, the claimant wrote to the Commission asking that his case should be given priority. The reasons given were the grounds of the application, the claimant's history, his age (66) and the previous attempts to overturn the conviction. By letter of 29th May, the Commission informed the claimant that it had decided that his case should not be given priority. The Commission stated:
"The Committee considered your letter against the Commission's published policy on the priority ranking and ordering of cases. During its deliberations, the Committee noted that: • Mr Cleeland's case had already been given some priority as it was classed as a 'significant at-liberty' case. Accordingly, it had joined the queue of in-custody cases which were automatically given priority over at-liberty cases. • Many of the Commission's other applicants whose cases were waiting to be allocated for review could benefit from advances in sciences and, indeed, new expert evidence did feature in many of them. The Committee considered the fact that Mr Cleeland maintained his innocence was not a strong enough reason on which to afford priority on the grounds of the impact of delay on the criminal justice system. Neither was the age of the case. The Committee could find no justification for giving priority on operational grounds. There was no reason, for example, for the case to be reviewed by the same Case Review Manager who had reviewed Mr Cleeland's previous application. Indeed, Mr Cleeland had suggested that the Case Review Manager who dealt with the Barry George case should deal with his case because of the firearms argument. Taking all the above into account, the committee concluded that no further priority would be given to Mr Cleeland's case. As noted above, Mr Cleeland's case is now in the queue of in-custody cases awaiting allocation to a Case Review Manager."
[4]On 7th August, the claimant filed a claim for judicial review of the Commission's refusal to give his claim priority. This was over two months after he had received the letter, a delay on his part which does not suggest urgency. The Commission filed an acknowledgment of service on 15th August. On the same day, 15th August, Burton J considered the application on the papers and refused permission to bring the application. He stated:
"There is no arguable basis for a finding that the Commission's decision, very much a matter of the management of its case load, was unlawful or perverse."
[5]The claimant has now renewed his application. By letter of 2nd November, the Commission informed the court that it did not intend to add to its submissions contained in its acknowledgment of service. The letter also stated:
"His case has since been allocated to a caseworker, which may render the need for an oral hearing outdated."
[6]In its acknowledgment of service, the Commission set out the various matters relied on in the claim form as entitling the claimant's case to priority. Those grounds are very much wider than those in the letter of 16th April. They were, in short, that the claimant was being denied access to the courts with the purpose of protecting a witness and that Parliament and the Court of Appeal had previously been misled as to the gunshot residue evidence; the claimant's emotional stress; that he had previously been accorded priority and that the review would not take long. The Commission answered these as follows and, again, I summarise: the decision of the Commission not to give priority did not deny the claimant access to the courts; an allegation of courts being misled was typical of many applications to the Commission; distress was not a good ground for privatising a case; each application for priority had to be decided on its own merits; and the Commission had estimated the amount of work involved. The Commission also summarised its practice as to when to give a case priority.[7]In my view, these answers by the Commission are a complete answer to the claimant's claim for judicial review. The Commission has exercised its discretion whether or not to accord priority wholly appropriately. This is an application, I regret to say, without merit. That is not to make any comment on the merits of the claimant's application to the Commission. We are not concerned with that. It also now appears that a caseworker has been allocated to the case and so on any view the claim for judicial review has become unnecessary. Lastly, I simply record that the report of Mr Dudley Gibbs, on which Mr Cleeland relies in relation to the evidence of Mr McCafferty, is dated 2nd November 2007, so the Commission will only have had it for a short time.

LORD JUSTICE DYSON: I agree.

[9]Well, Mr Cleeland, I am afraid we cannot help you on this judicial review. I suggest that you concentrate on the real battle, as far as you are concerned, which is to seek to persuade the Commission to refer your case to the Court of Appeal.[10]MR CLEELAND: Your Honour, the appeal court has been misled.

LORD JUSTICE DYSON: Yes, I know. I am sorry, we cannot --

[12]MR CLEELAND: Yes, but who do you complain to? You are the leading judges. You are misled and no-one wants to take a blind bit of notice of it. This is the problem I face now, another two years wait while they play for time. Thank you. Thank you, after 30 odd years, 36 years, 20 of them in prison, you want to make me wait another two years. Well, I am going to petition -- I am going to go outside in the appeal court. I will disturb your courts every week until someone listens to me about what is going on. Thank you.

Cited in 1 later judgment