Mills and Another v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | LORD CHIEF JUSTICE |
| Judgment Date | 20 December 2001 |
| Neutral Citation | [2001] EWHC 1153 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/825 2001 |
| Date | 20 December 2001 |
[2001] EWHC 1153 (Admin)
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION (DIVISIONAL COURT)
The Lord Chief Justice of England and Wales and
Mr Justice Ouseley
Case No: CO/825 2001
Nicholas Blake QC & Mr Raza Husain (instructed by Bhatt Murphy)
appeared for the Claimant
Miss Beverley Lang QC (instructed by the CCRC)
appeared for the Defendant
Introduction
This is a judgment of the Court.
This application for judicial review relates to a decision of the Criminal Cases Review Commission ("the Commission") of 27 th November 2000 not to refer back to the Court of Appeal, Gary Mills' and David Poole's, (the claimants), conviction of the murder of Hensley Wiltshire on 26 January 1990. In April 1996 their appeal against conviction to the Court of Appeal had been dismissed and in July 1997, their further appeal to the House of Lords was also dismissed.
In January 1998, the claimants jointly applied to the Commission for a review of their convictions. After a lengthy and careful consideration, the Commission produced its Provisional Statement of Reasons in January 2000. The solicitors for the claimants then made two further sets of representations on that Provisional Statement of Reasons before, on 27 November 2000, the Commission issued its Final Statement of Reasons. It concluded that the statutory requirements which have to be met for a reference of a conviction to the Court of Appeal were not satisfied.
An important feature of the claimants' reference was the dismissal of a defamation action by Detective Inspector Gladding, in October 1998. Inspector Gladding had been second in charge of the murder investigation and a witness at the claimants' trial, and he brought the action against Channel Four TV and others who had accused him of perverting the course of justice and of perjury at the claimants' trial.
The claimants were given permission to challenge the decision of the Commission on the grounds that the Commission had failed to direct itself correctly as to the fresh evidence and arguments available to show a real possibility that on a reference, the Court of Appeal would not uphold the convictions because:
i) there had been such a high degree of prosecutorial misconduct that the trial of the claimants should not have taken place at all, regardless of the effect of that misconduct on the trial itself;
ii) and because, taken as a whole, the evidence of such misconduct had significantly prejudiced the conduct of the claimants case and the trial.
On the hearing of the application for permission the claimants also relied on a further ground. The question of whether to give permission to argue this ground was adjourned to the substantive hearing. We heard brief argument on the point which was that the Commission ought to have investigated more fully the facts underlying the claimants' allegation of apparent bias made against Lord Justice Otton who had presided and had delivered the judgment when the Court of Appeal dismissed the claimants' appeal in 1996.
Following the decision of the House of Lords in R v Kansal 2001 UKHL 62, 29 November 2001, the claimants no longer contended that Article 6(1) of the European Convention of Human Rights should have been taken into account by the Commission when reaching their decision. The House of Lords' decision meant that Article 6(1) would not be applied on a reference by the commission to the Court of Appeal. Mr Blake QC, who appeared on behalf of the claimants, contended that the developments in the law as to the requirements of fairness, before the coming into force of the Human Rights Act on 2 October 2000, were sufficient for the purpose of his arguments.
The Legal Framework of the Commission
The Commission was established pursuant to Part II Criminal Appeal Act 1995. Section 13 of that Act, so far as relevant provides:
"(1) A reference of a conviction, verdict, finding or sentence shall not be made… unless:
a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made;
b) the Commission so considered –
i) in the case of a conviction, verdict or finding because of an argument, or evidence not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised; and
iii) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection 1(b) (i) or (ii) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it."
The statute therefore contains a two-stage test:
(1) (a) there has to be fresh evidence or an argument, not raised in the proceedings thus far, and (b) it is that evidence or argument which causes the Commission to consider that there would be a reasonable possibility that the conviction would not be upheld. (Mr Blake submitted that the material upon which he relied passed those two stages and that the Commission conclusion to the contrary should be quashed), or
(2) there needs to be exceptional circumstances which justify a reference. (Mr Blake relies on this ground if it is necessary for him to do so)
The requirement that there exist evidence or argument not already raised in the proceedings is important, because it prevents a constitution of the Court of Appeal on a reference sitting as a Court of Appeal from an earlier decision made by a differently constituted Court of Appeal. The different material, whether in the form of evidence or argument, must justify a new decision. So far as the Commission is concerned, it must appear that such a real possibility exists as a result of the new evidence or argument.
The conditions which have to be fulfilled before a reference is made are the means by which Parliament has attempted to resolve the tension between the need for justice to be done and requirement that there should be an end to litigation. Parliament was silent as to the role of judicial review. But the Commission is a public body and in reaching its decisions it is performing a public function so it is subject to judicial review.
The role of the Court hearing applications for judicial review to challenge decisions of the Commission is very much a residual one. Miss Lang QC for the Commission lays emphasis on R v CCRC exp Pearson, [1999] 3 A11 ER 498 and the judgment of Lord Bingham CJ in that case. At 171F to G Lord Bingham stated:
"Had the Commission decided to refer this case to the Court of Appeal that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgement entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its functions. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp a function which parliament has, quite deliberately, accorded to the judgment of the Commission."
In that same judgment Lord Bingham also pointed out that it was not appropriate to subject the Commission's reasons to a "rigorous audit" in order to establish that they were not open to legal criticism. "The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere": (169G.) This approach was subsequently adopted in R v CCRC exp Hunt [2001] 2 WLR 319.
Mr Blake accepts the limitations upon this court which those decisions impose. This court cannot act as a court of appeal from the Court of Appeal, nor can it act as an appellate body in relation to the Commission. The standards of judicial review do not require decisions of the Commission to be quashed whenever any flaw, however minor, is revealed by a process of rigorous audit.
The suggestion of Mr Blake that this court is in a position to be less deferential towards Commission decisions than towards those of other bodies, because this court is particularly well placed to form a view as to how the Court of Appeal would react to any new evidence or argument, is not consistent with the proper approach on judicial review. It is important, that this court does not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have concluded, since this would be to usurp the Commission's function. Decisions of the Commission cannot be quashed merely because a court on judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success.
The Facts
At the centre of the claimants case that there should have been a reference is the decision of a libel trial in 1998. This found a detective inspector Gladding had been guilty of perjury and abuse of process and it is alleged that this is of considerable significance in relation to two alleged eye-witnesses to the offence of which the claimants were found guilty. The first witness is Mr Juke, who did not give evidence, and the second witness is Mr White who gave evidence. In...
To continue reading
Request your trial
-
R (Michael Boyle) v Criminal Cases Review Commission
...It was not in issue that we can take the law from the judgment of the Court delivered by Lord Woolf CJ in R(Mills and Poole) v CCRC [2001] EWHC Admin 1153: "The Commission was established pursuant to Part II Criminal Appeal Act 1995. Section 13 of that Act, so far as relevant provides: "13.......
-
R Paul Cleeland v Criminal Cases Review Commission
...which are bound to detract it from fulfilling its statutory role. 25 In Mills & Poole v. Criminal Cases Review Commission [2001] EWHC (Admin) 1153, Lord Woolf CJ (giving the judgment of the court) repeated the warning. [14] … It is important that this court does not fall into the trap of f......
-
The Queen of on the Application of Ashley Charles v Criminal Cases Review Commission
...judicial review proceedings which are bound to distract it from fulfilling its statutory role….." 46 In R (Mills and Poole) v CCRC [2001] EWHC Admin 1153, Lord Woolf CJ underlined (at [10]) that the threshold conditions in s.13 of the 1995 Act were "the means by which Parliament has attempt......
-
R v Poole (Anthony Keith)
... ... OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ... Mr. Justice Simon ... Cases No: 2002/02985S2 Case No: 2002/02987S2 ... Appellants and Gary Mills and Regina Respondent ... , on a reference from the Criminal Cases Review Commission, by Anthony Keith Poole and Gary Mills ... the Commission's reasoning one way or another on any matter considered by it is unfettered; see ... ...