R (Mullen) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Mr Justice Scott Baker,LORD JUSTICE SIMON BROWN |
| Judgment Date | 21 February 2002 |
| Neutral Citation | [2002] EWHC 230 (Admin) |
| Date | 21 February 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No:CO/2285/2001 |
[2002] EWHC 230 (Admin)
IN THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT)
Lord Justice Simon Brown and
Mr Justice Scott Baker
Case No:CO/2285/2001
Miss C Lloyd-Jacob (instructed by Messrs Christian Fisher) for the Claimant
P Sales Esq & H Keith Esq (instructed by The Treasury Solicitor) for the Respondent
Introduction
On 8 th June 1990 at the Central Criminal Court the claimant was convicted of conspiracy to cause explosions likely to endanger life or cause serious injury to property and was sentenced to 30 years' imprisonment. He was alleged to have acted as quartermaster for an active IRA unit in London. He had been arrested in Zimbabwe on 6 th February 1989, immediately put on a plane to England and arrested on arrival at Gatwick the following day.
Leave to appeal against conviction out of time was granted on 19 th January 1998. On 4 th February 1999, after the claimant had been in prison for ten years, the Court of Appeal allowed his appeal. His deportation from Zimbabwe to the United Kingdom, in which the British authorities had been involved, represented a "blatant and extremely serious failure to adhere to the rule of law" and involved a clear abuse of process. The claimant's conviction was accordingly to be regarded as "unsafe" notwithstanding that there was "no challenge to the propriety of the outcome of the trial itself". The Court of Appeal's judgment is reported at [1999] 2 Cr App R 143.
Following the claimant's release, his solicitors applied on his behalf for compensation pursuant to section 133 of the Criminal Justice Act 1988 or, failing that, under the ex gratia scheme based on the Secretary of State's written statement of 29 th November 1985. By letter dated 6 th March 2000, finally confirmed on 15 th March 2001, the Secretary of State refused to pay compensation on either basis.
Before the court now is the claimant's challenge to both limbs of that decision. In addition, he seeks a declaration that section 133 is incompatible with Article 6 of the European Convention on Human Rights.
Section 133, so far as presently material, provides:
"(1) Subject to subsection (2) below, 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.
(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
[I need not read section 4A, inserted by the Criminal Appeal Act, 1995, which specifies certain matters to which the assessor must have regard in assessing compensation]
(5) In this section 'reversed' shall be construed as referring to a conviction having been quashed (a) on an appeal out of time; …"
Two issues arise out of these provisions: first, on the proper construction and application of section 133(1) was the quashing of this claimant's conviction because of the newly discovered fact as to the unlawfulness of his deportation to stand trial a quashing "on the ground that [this] fact show[ed] beyond reasonable doubt that there has been a miscarriage of justice"? Secondly, is the requirement in Article 6(1) of the Convention that "In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law" breached by the stipulation under section 133(3) that an claimant's right to compensation "shall be determined by the Secretary of State"?
A third issue arises out of the claim for an ex gratia payment. The 1985 statement indicates two broad categories of case in which the Secretary of State is prepared to pay ex gratia compensation to a person who has spent time in custody "following a wrongful conviction or charge". These are first, where this "has resulted from serious default on the part of a member of a police force or of some other public authority"; secondly, where there are other exceptional circumstances, in particular the emergence at trial or on appeal within time of facts which "completely exonerate the accused person".
The Secretary of State accepted that this claimant's case falls within the first of those two categories but, having regard to its exceptional circumstances, in particular the fact that the claimant was "properly convicted", he thought it right to depart from his usual policy and decided not to make an ex gratia payment. He concluded that to do so would be "an affront to justice". Was the Secretary of State entitled to depart from his policy in this way? That is the third issue which arises on this application.
With that brief introduction let me turn now to the first and principal issue arising: do the circumstances of this case give rise to a statutory right to compensation under section 133 of the 1998 Act? I shall discuss this issue under the heading "Miscarriage of Justice".
Miscarriage of Justice
In considering the rival arguments under this head it is essential to bear in mind the precise basis upon which the claimant's appeal came to be allowed. As already indicated, this was not because the Court had any doubts as to the correctness of the jury's verdict, but rather because it regarded the trial as one which ought not to have taken place at all. Let me quote the relevant passages from the judgement. First, as to the facts:
"In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but were also acting in breach of public international law." (156D-E).
Next, as to the propriety of the conviction:
"No challenge is sought to be made to the conduct of the trial itself and the appeal has proceeded on the basis that, if it was fair to try him, the appellant was properly convicted." (145B)
"… the appellant, as he now concedes, was properly convicted …" (154F-G)
Although the claimant has subsequently disputed making any concession to that effect, the plain fact is that no argument was ever advanced that he was not in fact guilty of the offence charged against him.
"… there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself …" (162A-B)
As to abuse of process, the basis upon which the Court allowed the appeal, the following passages in the judgment are important:
"This Court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the appellant in the manner which has been described, represents, in the view of this Court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy, to which, as appears from Bennett and Latif, very considerable weight must be attached." (156F-157A)
The reference there to the "discretionary exercise" was a reference back to R v Latif [1996] 2 Cr App R 92 where Lord Steyn at p101 said this:
"… it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates' Court ex p Bennett (1994) 98 Cr App R 114. Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place … the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impressing that the court will adopt the approach that the end justifies any means."
I return now to the Court's judgment in Mullen:
"… certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the...
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