R (Clibery) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 2007 |
| Neutral Citation | [2007] EWHC 1855 (Admin) |
| Date | 30 July 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4222/2007 |
[2007] EWHC 1855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
The Lord Chief Justice of England and Wales and
The Honourable Mr Justice Griffith Williams
Case No: CO/4222/2007
Ms H. Williams QC and Mr G. Vassall-Adams for the Claimant
Mr R. Tam QC for the Defendant
Hearing dates: 2nd and 3rd July 2007
Judgement
Lord Phillips of Worth Matravers CJ
This is the judgment of the Court
Introduction
This is an application for judicial review of a decision of the defendant, the Secretary of State for the Home Department, ('the Home Secretary'), to refuse the application of the claimant, Anthony Clibery, for compensation pursuant to section 133 of the Criminal Justice Act 1988, ('the CJA'). It is brought with permission granted by Wyn Williams J on 8 February 2007.
Section 133 (1) of the CJA ('section 133') provides:
"(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and 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 or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted."
On 23 December 1998 the claimant was convicted, after a trial at Chester Crown Court of two counts (counts 1 and 2) of raping his wife ('the complainant'). He was acquitted of one count of affray (count 3) and one count of applying a corrosive fluid to his wife with intent. He was sentenced by HHJ Elgan Edwards to 5 years imprisonment on each count, to run concurrently. On 19 July 2005 the Court of Appeal, on a reference by the Criminal Cases Review Commission ('the CCRC'), allowed his appeal against the two convictions. He claimed compensation pursuant to section 133(1). The Secretary of State decided that he was not entitled to compensation because he, the Secretary of State, was not persuaded that his convictions had been quashed 'on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice'. This application challenges that conclusion on the ground that it was based on an erroneous interpretation of section 133(1). It raises two issues. On true construction of section 133(1):
i) Were the claimant's convictions quashed as a result of 'new or newly discovered facts'?
ii) Did those facts show beyond reasonable doubt that there had been a 'miscarriage of justice'?
The facts
It was the prosecution case that the claimant raped Mrs Clibery during a meeting on 13/14 May 1998 to discuss the sale of the matrimonial home, Orchard Cottage. The claimant and Mrs Clibery went to the bedroom to look at documents, whereupon the claimant made sexual advances which were rejected. He pushed her onto the bed and raped her, penetrating first her vagina (Count 1) and then her anus (Count 2). She left the house the following morning and then went on a pre-arranged holiday without reporting the incident. On 1 June 1998 Mrs Clibery returned to the house, thinking it was empty. The claimant returned and an argument began. The claimant attacked her with a coat hanger and his hands and knees (Count 3). He then dragged her into the kitchen, tied her to a chair and poured bleach over her (Count 4). Mrs Clibery reported the attack and the rape incident to the police the following day and alleged that she had been raped repeatedly throughout the marriage. There were inconsistencies in her various accounts to the police. At the trial the claimant's case was that consensual sexual activities short of intercourse had taken place with Mrs Clibery on 13/14 May 1998 and that they had parted on good terms. He produced a clocking in card from his workplace to show that he could not have been at the house on 1 June 1998 at the time of the alleged attack. A forensic scientist examined Mrs Clibery's clothing and the chair, and concluded that the forensic evidence was inconsistent with her account. The judge directed the jury to acquit the claimant on Count 4, as bleach was not a corrosive substance as required by the offence. In his summing up, the judge did not consider that the evidence of the potential unreliability of Mrs Clibery was such as to require a specific warning to the jury as to her unreliability in accordance with R v Makanjuola [1995] 2 Cr App R 469. The jury acquitted Mr Clibery on Count 3 and convicted him on Counts 1 and 2. Following his conviction, the claimant sought leave to appeal. His appeal was dismissed after a hearing before the Full Court on 13 January 2000. The Vice President, Rose LJ, found that there was evidence bearing on the potential reliability of Mrs Clibery such as was capable of requiring specific warning to the jury, but that it was not unreasonable in the Wednesbury sense for the judge to have decided not to give such a warning.
The referral
On 16 February 2000 the claimant applied to the CCRC. Investigations by the CCRC followed. The conviction was then referred to the Court of Appeal with a Statement of Reasons dated 15 October 2001.
The basis for the referral was that since the claimant's conviction fresh evidence had emerged that cast doubt on Mrs Clibery's credibility. This evidence shows that she had a propensity for telling lies. The significant lies were as follows:
i) In a letter to her private investigator, Mr Need, dated 21 June 1998 she described a friend of hers as her sister, when she was not.
ii) In County Court proceedings in Chester on 7 April 1999 in respect of Mr Need's bill, Mrs Clibery told District Judge Harrison on oath that her husband was "in prison for five years for assault on me causing my disablement and abuse of children". In fact she had sustained her disabling injuries in a car crash four years before the alleged offences and the claimant had never faced charges of abuse of her children.
iii) In a letter to the Benefits Agency on 22 November 2000 she stated that "the severity of the assaults for which my ex-husband is serving two terms of five years has now left me in a position in which I can no longer help myself".
iv) In a further letter to the Benefits Agency dated 4 December 2000 she stated she had muscle problems after her 'severe rape and buggering', her knees had been beaten and her left shoulder bashed. These assertions were unsupported by the medical evidence.
v) In an 'Incapacity for work Questionnaire' dated 24 May 2001 she stated that she had 'no family except one foster sister and she is the only person I see' when she had three daughters living in Australia.
The CCRC concluded that there was a real possibility that had the jury been aware that the complainant was prepared to tell such lies they might have been less likely to believe her evidence. Furthermore had the judge been similarly aware this might have influenced his decision as to whether to give a Makanjuola direction. For these reasons the CCRC concluded that there was a real possibility that the claimant's conviction would not be upheld if it were referred to the Court of Appeal and, accordingly, referred it pursuant to section 9 of the Criminal Appeal Act 1995.
The decision of the Court of Appeal.
The Court of Appeal referred to the evidence that the complainant had lied that we have summarised above and made the following finding:
"There is no dispute that the statements and remarks, subject to one matter were clearly lies. It is clear that the complainant lied to the district judge in evidence. It is clear that she lied to the Benefits Agency. It is clear also that she lied, a pointless lie though it may have been, in the letter to Mr Need. As to the letter relating to her lack of family, this is less clearly a direct lie, bearing in mind the circumstances in which it appears…"
The Court then considered whether, had the evidence of these lies been available at the trial, the judge would have given a Makanjuola warning to the jury. It reached the following conclusion:
"…if evidence to that effect had been available and had been before the court, the judge may have rephrased his warning and may have included a warning of the special need for caution. However, it is not appropriate to speculate, particularly since much of the new material amounts to a misrepresentation of the reasons for the conviction itself and the nature of the sentence passed, which by definition could not have been before the jury in the form it was. We consider that the crucial question for us is the final ground, whether the conviction is safe."
The Court answered that crucial question in the negative:
"Although there was clearly already material before this jury that was capable of casting doubt on the truthfulness of the complainant, the jury plainly believed her on counts 1 and 2. The new evidence does demonstrate further that the complainant was capable of telling lies on matters relevant to the appellant on occasions clearly calling for the need for truthfulness. The Court cannot with confidence conclude that the jury would have reached the same verdicts. In our judgment, it is not possible to say with confidence that the convictions are safe. The convictions on count 1 and 2 must therefore be quashed and the appeal must be...
To continue reading
Request your trial
-
R (Adams) v Secretary of State for Justice; Re McCartney & McDermott
...the subsequent authorities only in so far as they discuss Lord Bingham's interpretation. In the subsequent case of R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), the Divisional Court (Lord Phillips CJ and Griffith Williams J) dismissed an application for ......
-
R Ismail Ali, Ian Lawless, Barry George, Kevin Dennis, Justin Tunbridge v Secretary of State for Justice
... ... James Strachan & Sarah Hannett (instructed by the Treasury Solicitor's Department ) for the Defendant ... (Transcript of the Handed Down Judgment of WordWave ... in the decisions of the House of Lords in Re McFarland [2004] UKHL 17 and R (Mullen) v Home Secretary [2004] UKHL 18 , and that of the Supreme Court in the Adams cases ... 5 ... the relevant passages from the Criminal Justice Act 1988 and authority including Mullen, Clibery, Boyle, Allen formerly Harris, and Siddall, the Secretary of State gave his reasons in the ... ...
-
R (Allen) (formerly Harris) v Secretary of State for the Home Department
...Lord Bingham and Lord Steyn. 31 That accords with the conclusion recently arrived at by the Divisional Court in R (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin). Mr Clibery had been convicted in 1998 of rape of his ex-wife. Subsequently, material became know......
-
R (Siddall) v Secretary of State for Justice
...the speech of Lord Bingham in R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, as applied in R. (Clibery) v Secretary of State for the Home Department [2007] EWHC 1855 (Admin), R. (Harris) v Secretary of State for the Home Department [2007] EWHC 3218 (Admin) and re B......
-
The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?
...of State for the Home Department [2005] EWHC 140 (Admin), [2005] 1WLR3516; R(Clibery)vSecretary of State for the Home Department [2007] EWHC 1855 (Admin); In reBoyle’s Application [2008] NICA 35; R(Allen)(formerly Harris)vSecretary of State for Justice [2008]EWCA Civ 808, [2009] 2 All ER 1;......