R Michael George Lyons v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies DBE,Mr Justice Nicol |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWHC 183 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1154/2018 |
| Date | 05 February 2019 |
[2019] EWHC 183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Nicola Davies DBE
Mr Justice Nicol
Case No: CO/1154/2018
Edward Fitzgerald QC and Arthur Blake (instructed by Somers & Blake) for the Claimant
Sam Karim QC and Ben Williams (instructed by Criminal Cases Review Commission) for the Defendant
Hearing date: 15 January 2018
Approved Judgment
In judicial review proceedings the claimant seeks to challenge the decision of the Criminal Cases Review Commission (“CCRC”) made on 5 December 2017 to refuse to make a reference in respect of two convictions of the claimant to the Court of Appeal Criminal Division pursuant to section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”). On 23 July 2010 the claimant was convicted at the Wood Green Crown Court of the rape of a woman, CP, on 30 June 2002 and the sexual assault by digital penetration of a woman, TOR, on 31 January 2005. He was sentenced to a total term of ten years' imprisonment.
The legal framework
Pursuant to sections 9 to 12 of the 1995 Act, where a person has been convicted on indictment or by a Magistrates' Court in England and Wales or Northern Ireland the CCRC may at any time refer the resulting conviction, verdict, finding or sentence to the Court of Appeal, Crown Court or County Court as appropriate.
The conditions for the making of such a reference are identified in section 13 of the 1995 Act:
“ 13. Conditions for making of references.
(1) A reference of a conviction … shall not be made under any of sections 9 to 12B unless—
(a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,
(b) the Commission so consider—
(i) in the case of a conviction … because of an argument … not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it…”
The approach which the CCRC must adopt to such references is set out in R v Criminal Cases Review Commission ex parte Pearson [1999] 3 All ER 498, [2000] 1 Cr App R 141 at page 149D-E in the judgment of Lord Bingham CJ:
“Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the Court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the Court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.”
The “real possibility” test is explained at pages 149F–150A:
“The ‘real possibility’ test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility, but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.”
In R (Charles) v Criminal Cases Review Commission [2017] EWHC 1219 (Admin) Gross LJ provided further clarification of the role to be performed by the CCRC:
“65. The question is not straightforward. First, as already seen, the exercise of the power to refer, including its predictive element, is a matter for the judgment of the CCRC, not the Court – and is not to be usurped by the Court. Secondly, the CCRC has a discretion not to refer, even when the threshold conditions are satisfied. Thirdly, in many cases (perhaps most but I do not know) the issue for the CCRC will not give rise to ‘bright-line’ decisions on substantive criminal law at all; for instance, cases where a reference is sought on grounds of fresh evidence or an alleged failure to give proper disclosure. Fourthly, questions of some awkwardness could arise as to the role of this Court and that of the CACD were this Court purportedly to decide unsettled issues of substantive criminal law definitively for itself. All of this points towards the Court being slow to intervene where the CCRC has taken a tenable and not irrational view, whatever the Court's own view might be. That said, I would be unwilling to say that there could not be cases where the CCRC's decision was vitiated by an error of substantive law – though it may well be that in such a case the matter could simply be disposed of by the conclusion ( ex hypothesi readily arrived at) that the CCRC's decision was not tenable.”
From the above it can be seen that the Divisional Court will be slow to intervene unless the claimant can identify some clear error of law within the decision challenged. It is not for this court to fall into the trap identified by Lord Woolf CJ in Mills and Poole v Criminal Cases Review Commission [2001] EWHC 1153 (Admin), namely:
“14. … 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 this 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 a 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 factual background
CP complained to the police on 1 July 2002. She stated that she had attended the claimant's flat with a number of other women. CP had consented to the claimant administrating a massage and acupuncture, however during the course of the “treatment” he removed her underwear and had sexual intercourse with her. No allegation of force or violence was made but CP alleged she had protested and that the sexual intercourse was non-consensual. On 1 July 2002 she was examined by Dr Gray, a forensic medical examiner, who made a contemporaneous note of her examination but did not make a written statement. In her note Dr Gray recorded that she observed redness inside CP's vagina but no clear evidence of rape. The claimant was arrested on 2 July 2002 and was interviewed by the police. The possessions and clothing of the claimant were subjected to forensic testing, negative results were obtained. The decision was taken by the police not to charge the claimant.
TOR alleged that digital penetration of her vagina had occurred during a consensual treatment session on 31 January 2005. The claimant was touching her legs, standing between them, he brushed his hands on the outside of her underwear and very smoothly placed his fingers in TOR's vagina. Asked what he was doing, he said he was feeling her energy pulse. She told him to stop and he did. At the time she made no complaint of sexual assault. On 3 February 2005 TOR described what had occurred to her therapist.
A number of other women also made allegations of rape and sexual assault by the claimant. In 2009 a criminal trial was held in which a number of female complainants, which included CP and TOR, alleged that the claimant had committed sexual offences against them between 1998 and 2008. The jury was unable to reach verdicts at the conclusion of the trial, as a result a retrial was held.
The claimant's case was that he was a healer and teacher of Buddhism who had become the victim of a vindictive internet campaign. The complainants were cross-examined upon the basis that the claimant had spent time with them, given them therapeutic treatments, but there had not been sexual contact of any kind with them. The claimant did not give evidence at his retrial. He called about 50 witnesses, some of whom gave evidence directly relevant to the circumstances of the alleged offences, some testified to his good character and therapeutic abilities. The jury returned guilty verdicts in respect of the rape of CP and the sexual assault of TOR. Of the remaining counts, the claimant was acquitted or the jury were unable to agree upon a verdict.
The claimant applied for leave to appeal against both conviction and sentence. Following refusal by the single judge he renewed his applications and in respect of conviction presented four submissions to the Court of Appeal, namely that:
• The judge misdirected the jury on the issue of consent;
• The judge should not have allowed the prosecution to adduce bad...
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