Paul Alexander Cleeland v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 30 June 2021 |
| Neutral Citation | [2021] EWHC 1788 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No: CO/227/2020 |
[2021] EWHC 1788 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lavender
Claim No: CO/227/2020
The Queen on the application of
The Claimant appeared in person.
Sarah Clover (instructed by the Defendant) for the Defendant
Hearing date: 6 October 2021
(1) Introduction
This is my judgment on a renewed application for permission to apply for judicial review and on an application for permission to amend the statement of grounds attached to the claim form.
On 25 October 2019 the Defendant, the Criminal Cases Review Commission (“the Commission”), decided not to refer to the Court of Appeal the conviction of the Claimant, Paul Alexander Cleeland, on 25 June 1973 for the murder of Terrence Clarke. By a claim form issued on 22 January 2020 the Claimant applied for permission to apply for judicial review of that decision. On 13 March 2020 Garnham J refused permission to apply for judicial review. The Claimant renewed his application and, by an application notice issued on 5 August 2020, applied for permission to amend the statement of grounds attached to the claim form.
On 6 October 2020 I heard the renewed application for permission to apply for judicial review and the amendment application. Because the Claimant, who was representing himself, said that he had not seen the Commission's skeleton argument before the hearing, I gave the Claimant permission to make any submissions in reply in writing by 3 November 2020. At the Claimant's request, by my order of 30 October 2020 I extended that deadline to 1 December 2020 and by my order of 27 November 2020 I extended that deadline again, to 29 January 2021. In the event, the Claimant did not file any submissions in reply.
Instead, the Claimant filed “Supplementary Grounds” dated 14 January 2021, together with a witness statement in support, also dated 14 January 2021. Although he did not issue an application notice, by filing the Supplementary Grounds the Claimant was, in effect, applying for permission:
(1) to amend the claim form by adding the Commission's alleged decision of on or about 12 January 2021 as a decision to be judicially reviewed; and
(2) to amend his statement of grounds by adding the Supplementary Grounds.
The Commission filed a Response dated 3 February 2021 and the Claimant filed a Reply dated 15 February 2021. By my order of 22 February 2021 I refused permission to the Claimant to amend the statement of grounds or the claim form.
(2) The Claimant's Conviction for Murder
On 5 November 1972 Terrence Clarke was murdered near his home in Stevenage. On 25 June 1973 the Claimant was convicted at a re-trial of Mr Clarke's murder and sentenced to life imprisonment. It is relevant to note that:
(1) It was the Crown's case that the murder weapon was a Gye & Moncrieff shotgun which was found about 8 or 9 minutes' walk away from the scene of the murder and which a witness, Mr Sell, said that he had sold to the Claimant shortly before the murder.
(2) The Crown's evidence at the Claimant's trial included the evidence of John McCafferty, of the Metropolitan Police forensic science laboratory, who gave evidence about the Gye & Moncrieff shotgun.
(3) On 23 November 1972 the Essex Police recovered two sawn-off shotguns (“the Essex guns”) from a stream near Harlow and delivered them to the Hertfordshire Police in case they had something to do with Mr Clarke's murder. The Essex guns were examined in November 1972 by a firearms expert, John Pryor. The police did not consider that the Essex guns were relevant to Mr Clarke's murder and they were not referred to at the Claimant's trial.
(4) Since he learnt of the Essex guns, the Claimant has maintained that one of them, a Western Field 12 bore pump action repeater shotgun (“the Western Field gun”), was the murder weapon. The other Essex gun was a Muller 12 bore double barrelled shotgun (“the Muller gun”).
(3) The Claimant's Efforts to Overturn his Conviction
The Claimant spent 27 years in prison and was released on licence in 1999 or 2000. At all stages since 1973 the Claimant has consistently and strenuously maintained his innocence and has sought to have his conviction quashed. I will set out what I have gleaned from the papers before me and from reported decisions as to the steps which the Claimant has taken, but I doubt whether the account which I am about to give is complete.
In 1973 the Claimant applied to the Court of Appeal for permission to appeal against his conviction. That application was refused by the full court on 26 February 1976.
On five occasions between 1986 and 1996 the Claimant petitioned the Secretary of State for the Home Department for a reference to the Court of Appeal under section 17 of the Criminal Appeal Act 1968. Those petitions were all unsuccessful, as were applications for judicial review of two of the Secretary of State's decisions, made in 1991 and 1992. As part of those proceedings, judgments were given by the Divisional Court on 2 October 1991 and by Simon Brown J on 28 November 1991.
The Claimant sought to prosecute the civil servant who prepared a memorandum for the Secretary of State in connection with his petition submitted in March 1986. The magistrate refused to issue a summons. The Claimant applied for judicial review. That application was dismissed: R. v Horseferry Road Magistrates' Court, ex p. Cleeland [1992] C.O.D. 110.
In connection with his petitions, the Claimant applied for disclosure of various documents and applied for judicial review of the Secretary of State's refusal to disclose certain police reports. The Divisional Court dismissed that application: R. v Secretary of State for the Home Department, ex p. Cleeland [1996] C.L.Y. 1366.
Once the Criminal Appeal Act 1995 came into effect, on 20 July 1997 the Claimant applied to the Commission for his case to be referred to the Court of Appeal (Commission reference 00713/1997). On 23 October 1998 the Commission refused to refer the case, but that refusal was quashed by the Divisional Court on 21 January 2000, in an order made by consent.
On 18 September 2000 the Claimant sought judicial review of the Commission's decision not to require further tests, including weight analysis of shot pellets. Permission to apply for judicial review was refused on 10 October 2000.
The Commission obtained a report from Mr Spencer, a firearms expert, which was in part critical of Mr McCafferty. On the basis of Mr Spencer's report and its possible effect on the reliability of the evidence of Mr McCafferty, on 24 October 2000 the Commission referred the case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.
Mr Spencer gave evidence before the Court of Appeal, as did Mr Pryor. Mr McCafferty did not give evidence, because he was dead. Unusually, the Claimant himself was allowed to cross-examine the witnesses who gave evidence before the Court of Appeal and to make submissions to the Court of Appeal in addition to those made by his counsel. He advanced 20 grounds of appeal. On 13 February 2002 the Court of Appeal dismissed his appeal: R v Cleeland [2002] EWCA Crim 293 (“the 2002 judgment”). It is relevant to quote what the Court of Appeal said about the Essex guns in paragraphs 94 to 96 of the 2002 judgment:
“94. It was Mr Cleeland's submission before us that the murder had in fact been carried out by the use of a sawn off pump-action shotgun. That submission was unsupported by any evidence, the only possible basis for such an assertion being the deposition of Mrs Clarke in which she stated that she saw a policeman pick up a single cartridge at the scene of the crime. If accurate, that might well suggest the use of a pump-action shotgun. However, there is no other evidence that a cartridge was so found; and in particular there is no entry in the exhibit register or other contemporary record of a single, or any, cartridge being found at the scene when there could have been no reason at the time for the police to seek to conceal such a discovery. It seems clear that Mr Cleeland was aware of Mrs Clarke's evidence as it was in her deposition. It does not appear from the summing-up however that the appellant suggested at trial that a pump action shotgun had been used as the murder weapon, and the appellant confirmed that to us in the course of his submissions. That assertion is now associated with his complaint under Ground 7 that the Crown failed to disclose that, in late November, the forensic science laboratory examined two other shotguns which the appellant submits were candidates for this particular shooting and which were in no way connected with him. It is apparent from the forensic science laboratory records that, on Thursday 24 November 1972, the laboratory received for examination two sawn-off shotguns which had been found by Essex Police in a stream near Harlow in Essex. Essex CID being aware of (though not concerned with) the Clarke killing, sent the guns to the Hertfordshire police in case they might have been involved in the Stevenage murder. The Hertfordshire team did not believe that to be so and the two guns were accordingly submitted to the forensic science laboratory by the Hertfordshire Constabulary by the hand of DI Ratcliffe on the 24 November for comparison with any other crimes. The two guns in question were an American Western Field 12-bore pump action repeater shotgun and a German Muller 12-bore double barrelled shotgun, both sawn-off. It was made clear to us by Mr Spencer that the act of sawing off the barrels of a shotgun would have had the effect of removing any choke that there may have been in the barrels of either.
95. Upon submission to the laboratory, both guns...
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