R (Allen) (formerly Harris) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice May |
| Judgment Date | 15 July 2008 |
| Neutral Citation | [2008] EWCA Civ 808 |
| Date | 15 July 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2008 /0005 |
[2008] EWCA Civ 808
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE MITTING
Royal Courts of Justice
Strand, London, WC2A 2LL
The President Of The Family Division
Lord Justice May and
Lord Justice Hughes
Case No: C1/2008 /0005
Mr Tim Owen QC and Mr Hugh Southey (instructed by Stephensons) for the Appellant
Mr Hugo keith (instructed by Treasury Solicitor) for the Respondent
Hearing date: 1 st July 2008.
The appellant, Lorraine Allen, formerly Lorraine Harris, had her conviction for the manslaughter of her 4-month old son quashed by the Court of Appeal (Criminal Division) (“CACD”), which had heard fresh evidence. She applied to the Secretary of State for compensation for miscarriage of justice but his decision was that she was not eligible. She sought judicial review of that decision but failed before Mitting J, who rejected the specific reasons of the Secretary of State, but held that the appellant's application for compensation could not in any event succeed. She now appeals against Mitting J's refusal to quash the decision. The Secretary of State's original reasons are no longer in issue. Three issues are potentially raised by the appeal:
i) the proper meaning of section 133 Criminal Justice Act 1988 and of the expression 'miscarriage of justice' contained in it; in particular which of the two interpretations advanced respectively by Lord Bingham and Lord Steyn in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1, is correct;
ii) whether, if Lord Bingham's construction be correct, this appellant was treated by the CACD as someone against whom there was, on the evidence as now understood, no basis on which a jury could properly convict, and should for that reason be considered to be a person who has suffered a miscarriage of justice;
iii) whether, even if this is not so, the presumption of innocence, enshrined in Article 6(2) of the European Convention on Human Rights (“ECHR”) has the effect that the appellant, having had her conviction quashed, is entitled to be treated as having had her innocence established and therefore ipso facto to have suffered a miscarriage of justice.
Section 133 Criminal Justice Act 1988
The material parts of section 133 provide as follows:
“(1) …..when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned 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, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted…..
(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State…..
(5) In this section “reversed” shall be construed 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….”
The last subparagraph, in speaking of a reference under the Criminal Appeal Act 1995, is adverting to a reference to the CACD by the Criminal Cases Review Commission.
It is common ground that section 133 was enacted in order to make the clearer this country's compliance with its treaty obligations under Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Cmnd 6702; 1977) ('the ICCPR'). Except that the statute substitutes the expression “beyond reasonable doubt” for the covenant word “conclusively”, section 133(1) is in terms identical to Article 14(6).
There existed before the enactment of section 133 a discretionary ex gratia scheme for the payment of compensation; it has now been withdrawn, and there may be outstanding litigation concerning the withdrawal. We are, however, concerned in this case only with the statutory provision for compensation contained in section 133.
The facts of this case
The facts of the appellant's case are set out very clearly in the judgment of Gage LJ in the CACD: R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980. She was convicted of the manslaughter of her 4-month old son. He died of closed head injuries of the kind often referred to as “shaken baby syndrome” or, as the judgment of the CACD prefers to term it, “non-accidental head injury”. The Crown's case was that she had shaken him in a violent manner beyond any proper handling, and/or thrown him down in his cot or otherwise struck his head against some object. Her case was that she had discovered him in the middle of the night floppy and unable to wake up; she had done no more than at most to bounce him properly on her knee in panic.
The household consisted of the appellant, the father of her son, and two daughters of hers by a previous relationship. There were no financial difficulties and the health professionals who had dealt with the family said that it gave the impression of perfection. On the night in question the boy was in the sole care of the appellant; father being away working a night shift.
At just before 1 a.m. the appellant telephoned her general practitioner and reported that she had woken to feed her son and found that he was not breathing. Her later evidence was that he was having difficulty breathing and she overstated his condition to get the doctor to hurry. The doctor visited. After examining the child he concluded that apart from his being a little snuffly there was nothing wrong with him. His eyes were normal and there were no signs of injury or abuse. He left the house at 0130.
At 0234 the appellant made a 999 call for an ambulance. She said that her son would not wake up. The ambulance crew, which arrived seven minutes later, found no pulse and could not revive him. He had fixed and dilated pupils and both then and at hospital very obvious retinal haemorrhages were apparent. Despite the best efforts of the medical teams at two hospitals, he could not be saved. The pathologist found no external injuries of any kind, but subdural and subarachnoid haemorrhages, marked swelling and softening of the brain associated with widespread hypoxic changes, and extensive bleeding in the retinae and vitreous of the eyes. These three elements of brain damage, subdural bleeding and retinal haemorrhages have frequently been called 'the triad' and often treated by medical opinion as strongly suggestive, or by some doctors as diagnostic, of non-accidental injury. That was the basis of the medical evidence called by the Crown.
Extensive medical evidence was also called for the appellant at the trial. The medical case for her accepted that the findings were consistent with violent shaking, with or without impact, but disputed that they necessarily demonstrated that this had happened. Alternative causes of the injuries found which were canvassed were bleeding from a blood disorder and re-bleeding of an old blood clot.
The appellant was convicted by the jury of manslaughter. Thus, the jury found that it was sure, to the criminal standard of proof, that she had used unlawful force on her son and thereby caused his death.
Her case was one of four referred to the CACD after well known doubts had been expressed about expert evidence in so-called shaken baby syndrome cases. In particular a team led by Dr Geddes had postulated a hypothesis ('Geddes III') that hypoxia (lack of oxygen), both alone and in combination with infection, was capable of giving rise to the triad of symptoms, without there being any unlawful force and indeed possibly as the result of an incident of apnoea (temporarily ceasing to breathe). Dr Geddes was one of many medical experts who gave evidence before the CACD. In the course of her evidence, however, she acknowledged that her team's hypothesis did not stand up to critical analysis and the court rejected it as a credible cause of the triad of injuries.
There remained a substantial divergence of medical opinion amongst the expert witnesses called in the CACD. I borrow extensively, and with gratitude, much of Mitting J's analysis of it. In particular, there was a “head-on collision” between two consultant experts in neuro-pathology. Dr Waney Squier, who had at the time of trial advised the appellant that the injuries found were non-accidental, had changed her mind and before the CACD firmly expressed her view that there was no incontrovertible evidence justifying this conclusion. Dr Rorke-Adams, by contrast, was firmly of the view that the medical findings did indeed lead to this conclusion. The two doctors disagreed not only as to their interpretation of the findings, but as to what clinical signs could be seen from the photographs; neither had examined the body personally. As to these two experts, Gage LJ expressed the court's conclusions in this way:
“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 as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at...
To continue reading
Request your trial
-
R Ismail Ali, Ian Lawless, Barry George, Kevin Dennis, Justin Tunbridge v Secretary of State for Justice
...Lord Steyn and Lord Bingham in Mullen's case had been resolved by the Court of Appeal in R (Allen) v Secretary of State for Justice [2008] EWCA Civ 808 at [40] and by the Divisional Court in R (Siddall) v Secretary of State for Justice [2009] EWHC 482 (Admin) at [49] in favour of Lord Steyn......
-
R (Adams) v Secretary of State for Justice; Re McCartney & McDermott
...it has been established that he ‘should not’ have been convicted.” 33 In R (Allen, formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] All ER 1, the claimant had been convicted of manslaughter. Her appeal against conviction was allowed by the CACD on the grounds of......
-
R (Hallam and Another) v Secretary of State for Justice
...1565 (Admin). The Divisional Court held that it was bound by Adams, and by the decision of the Court of Appeal in R (Allen) (formerly Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R 2, to hold that article 6(2) had no application to section 133, notwithstan......
-
Sam Hallam and Another v The Secretary of State for Justice
...was bound by the Supreme Court's decision in Adams and by the Court of Appeal's decision in R (Allen) v Secretary of State for Justice [2008] EWCA Civ 808, [2009] 1 Cr App R 2 to hold that article 6(2) is not applicable to compensation decisions made under section 133 of the 1988 Act; (ii)......
-
The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?
...and Hammern vNorway Application no30287/96 (unreported) 11 February 2003.48 R(Allen)(formerly Harris)vSecretary of State for Justice [2009] 2 All ER 1.49 Adams n 5 above at [58].50 ibid.51 ibid at [111] (Lord Hope).Compensation for Miscarriages of Justice© 2012 TheAuthors. The Modern Law Re......